PART I: INTRODUCTION ....................................................................................................................... 3
Introduction to the Course ........................................................................................................................ 3
Introduction to the Administrative State and the Rule of Law ................................................................. 3
Roncarelli v. Duplessis [1959] SCR 121 (Qc) ................................................................................. 4
Rule of Law .......................................................................................................................................... 6
British Columbia v. Imperial Tobacco Canada Ltd. [2005] SCC ................................................... 7
National Bank Case (1984).............................................................................................................. 9
The Constitutional Basis of Judicial Review ............................................................................................ 9
Statutory Removal of Judicial Review – Privative Clauses ............................................................... 10
Crevier v. Quebec (Attorney General) [1981] SCC ..................................................................... 10
The Role of Judicial Review .................................................................................................................. 12
Baker v. Canada (Minister of Citizenship and Immigration) [1999] SCC ................................... 12
PART II: ADMINISTRATIVE PROCEDURES AND THE DUTY OF FAIRNESS ........................ 17
Introduction and Historical Overview .................................................................................................... 17
Cooper v. Board of Works for Wandsworth District [1863] ENG ............................................... 18
Emergence of the Duty of Fairness ........................................................................................................ 19
Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [1979] SCC ....................... 19
Fox-Decent’s pet theory: .................................................................................................................... 20
Knight v. Indian Head School Division no 19 [1990] SCC ........................................................... 21
Limitation on the Scope of the Duty: legislative and policy decisions .................................................. 24
Canada (Attorney General) v. Inuit Tapirisat of Canada [1980] SCC ......................................... 24
Authorson v. Canada (Attorney General) SCC .............................................................................. 25
Wells v. Newfoundland SCC .......................................................................................................... 26
Legitimate Expectations ......................................................................................................................... 27
Liverpool Taxi—NOT IN OUTLINE .............................................................................................. 27
Khan—NOT IN OUTLINE ............................................................................................................. 27
Reference Re Canada Assistance Plan [1991] SCC ...................................................................... 27
Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) [2001] SCC .............. 29
Constitutional Dimensions: Section 2(e) of the Bill of Rights & Section 7 of the Charter .................... 30
Charter vs. Judicial Review ................................................................................................................ 30
Differences in Application of Charter and BoR ................................................................................. 31
National Anti-Poverty Organization v. Canada (Attorney General) [1990] FCA ........................ 32
Singh v. Canada (Minister of Employment and Immigration) [1985] SCC .................................. 33
Constitutional Dimensions (Undue Delay, Incorporation of Baker Framework under s.7) ................... 34
Surech v. Canada (Minister of Citizenship and Immigration) [2002] SCC .................................. 34
Blencoe v. British Columbia (Human Rights Commission) [2000] SCC....................................... 35
Constitutional Dimensions con’t (Ex Parte, En Camera Hearings) ....................................................... 37
Charkaoui v. Canada (Citizenship and Immigration) [2007] SCC ............................................... 37
Liability of the Crown and the intersection of Crown Liability and Judicial Review (Guest Speaker) . 39
The Content of Procedural Fairness – Oral Hearings, Right to Counsel ................................................ 40
Oral Hearing ....................................................................................................................................... 40
Khan v. University of Ottawa [1997] ON CA ................................................................................ 40
Right to Counsel ................................................................................................................................. 41
Re Men’s Clothing Manufacturers Association of Ontario and Toronto Joint Board,
Amalgamated Clothing and Textile Workers’ Union [1979] ......................................................... 41
New Brunswick (Minister of health and Community Services) v. G.(J.) [1999] SCC ................... 43
Content of Procedural Fairness – Duty to Give Reasons........................................................................ 44
Via Rail Canada Inc v. National Transportation Agency [2001] FCA ......................................... 45
Gray v. Ontario (Disability Support Program) [2002] ON CA ..................................................... 46
1
PART III: SUBSTANTIVE REVIEW .................................................................................................... 47
Introduction ............................................................................................................................................ 47
Jurisdiction ......................................................................................................................................... 47
Pragmatic & Functional Test.............................................................................................................. 48
Law Society of New Brunswick v. Ryan [2003] SCC ..................................................................... 50
Dr. Q v. College of Physicians and Surgeons of BC [2003] SCC ................................................. 51
Pragmatic & Functional Approach: Patent Unreasonableness ............................................................... 53
CUPE v. New Brunswick Liquor Corp [1979] SCC ...................................................................... 53
National Corngrowers v. Canada [1990] SCC ............................................................................. 55
Pragmatic & Functional Approach: Correctness .................................................................................... 56
Canada (Attorney General) v. Mossop [1993] SCC ...................................................................... 56
Pushpanathan v. Canada [1993] SCC........................................................................................... 58
Trinity Western College v. BC College of Teachers [2001] SCC .................................................. 60
Pragmatic & Functional Approach: Reasonableness simpliciter ............................................................ 62
Southam v. Canada (Director of Research & Investigation) (1997) ............................................. 62
Discretion and the Constitution .............................................................................................................. 63
Slaight Communications v. Davidson [1989] SCC ........................................................................ 64
Multani v. Commission scolaire Marguerite-Bourgeoys SCC....................................................... 65
Agency Jurisdiction ................................................................................................................................ 66
Cooper v. Canada (Human Rights Commission), [1996] SCC ..................................................... 67
Nova Scotia (WCB) v. Martin, [2003] SCC ................................................................................... 67
2
Part I: Introduction
Introduction to the Course
-
-
judges reviewing the actions of admin agencies (tribunals, etc).
o particular decision-maker exercising statutory power within a public law regime
Not like appealing a case from a trial court to a crt of appeal (where they will generally only look
at issues of law).
Judicial review – judges do not have inherent jurisdiction to make the decision that the
administrator has.
o Judges understand their job to be reviewing the case on the grounds of its legality
o Quash the decision and send it back to primary decision make for re-decision
o Judges on review do not have inherent jurisdiction to make the actual decision – the
decision-making power comes exclusively from statute.
duty of procedural fairness of a duty of public officials to let people know of their rights...?
Substantive review – decision can still be challenged on basis of substance.
4 most important cases:
- Roncarelli
- CUPE v. NB
- Nicholson
- Baker
Introduction to the Administrative State and the Rule of Law
Mullan
- discusses in broad terms the different areas that admin law covers and what judicial
review is about
- 1. Dealing with procedures used
- 2. Evaluating whether there is a rational basis for the decision
- 3. Is judicial review a discretionary exercise of power – not usually guideline, usually just
in the discretion of the decision-maker
- 4. Remedies available to a person seeking to use judicial review
o certiori – quashing
o injunction
o declaratory relief – for example to declare a particular statute is ultra vires.
Subject matter of judicial review is broad:
- employment
- regulated industries – for example utilities, railways, air travel, resource industries, financial
sector. Highly regulated through complex leg. Includes particular agencies and panels to oversee
the regimes
- certain activities – mergers, IP, land development, public works
- professions and trades –
- social control – detention in criminal law or immigration schemes. Subject to explicit statutory
requirements
- human rights – most provinces have human rights commissions. Structure is generally
commission receives compliant and if on review and preliminary investigation finds merit usually
a tribunal will be struck to hold a hearing
3
-
income support – EI or workers’ comp (precluded from suing employer, but usually no-fault
compensation), social assistance
public services – ex. health industry and education. Highly regulated at fed and prov levels with
different agencies taking resp for diff aspect of delivery of programs. Parks, police, fire dept
Institutions of legislative state
- legislatures – exercise primary law making resp. Establish statutory schemes w/i which public
administrators exercise powers
- cabinet and ministers – typically have appointment powers.
- Crown corporations –
- Private bodies that provide public services or engage in public functions – ex. utilities (hydro),
sports federations
- Independent admin agencies or tribunals - most common and influential. Ex. labour relations
board, immigration and refugee board.
o Likenesses:
 Set up by statute and designed and required by law to operate independently of
the gov’t.
 The effected parties involved typically have a right to participate. These interests
underlie duty of fairness.
 Operate at sharp end of admin process – see textbook (chapter 1). Typically have
a part dedicated to resolution of judicial disputes
 All specialized – usually staff is taken from industry that they are seeking to
regulate. Field sensitive expertise as well
o Differences: Arise from different context in which they participate
 Some make rights determinations and some don’t – some deal with broad policy
issues that are not individualized
 Structure – labour relations boards usually have 3 parties and conduct fairly
court-like proceedings. Others are not court-like at all. Mainly tasked with
inspection
 Case loads vary tremendously – landlord/tenant = 1000s, CRCT only a few each
year. Some decisions require larger investment of resources (like CRTC where
decisions affects large number of people)
Roncarelli v. Duplessis [1959] SCR 121 (Qc)
viewed as one of the most imp cases in public law
Facts:
- mid-1940s Jehovah’s Witnesses began to spread their message throughout QC – largely by
standing on street corners and giving out pamphlets that were critical of Catholic church
- Outcry in QC to stop these people. In various municipalities Auditor General (Duplessi) arrested
people for peddling things w/o a license.
- Premier Duplessis ordered the cancellation of restauranteur Roncarelli’s liquor licence because
Roncarelli was a Jehovah’s witness who acted as a bondsman for other Jehovah’s Witnesses who
were arrested for distributing their literature. The statute gives the liquor commission discretion
in revoking permits.
Issue: Does the Liquor Commission have absolute discretion to revoke permits?; Did Duplessis abuse his
power in ordering the liquor board to revoke the permit?
Held: No; Yes. Judgement for Roncarelli.
4
Reasoning:
- Roncarreli faced several hurdles:
o had to get permission from AG to pursue Duplessi. But Duplessi is AG
o As public officials, Duplessi and Archambault were immune to civil damages. All public
officials in QC are covered by domestic equivalent of state immunity doctrine
o Real difficulty – expressed in dissent of Cartwright J. – found in very terms of liquor act,
under which the licence was revoked. The terms of the Act dealing with revocation of
permits says that Commission can cancel a permit at any time at its sole discretion.
Certain mandatory circumstances where the licence must be revoked. But in terms of
cancellation, the statute said licence could be cancelled at its discretion.
o Cartwright J (dissent) – said it’s not for the judges to determine to terms of the exercise
of discretion. Don’t make the law. If the leg wanted to define the discretion they could
have. But they didn’t. Nor did they say that the decision-maker had a duty to give notice
or provide reasons or a hearing prior to making the decision
Rand J (majority) – considered leading judgment for majority (gives four reasons)
- It’s true that the statutory words say that the Commission may use its discretion – but discretion is
never unfettered or subject to arbitrary likes or dislikes of a public officer.
- Have to look at purpose and objectives of act to find confines of discretion – here objective is to
control sale and distribution of alcohol
- Acknowledges that there is a good to the sale of alcohol, but there are dangers as well. And it’s a
good on which some people depend for their livelihood.
- Duplessi went after Roncarelli for an unchallengeable right to post bail.
o Notwithstanding the broad discretion, it is nonetheless illegal/illegitimate for the
decision-maker to exercise a power he holds in virtue of his public office to injure
Roncarelli on the basis of an “unchallengeable right” [he had an unchallengeable civil
right to post bail for whoever he wanted]
- Roncarelli was thus divested of an aspect of being a Quebec citizen  ability to apply for a
license, and expectation of receiving one, barring certain disqualifying criteria
- Reconciling grants of discretion w/ rule of law
- Decision can’t cancel licence for any reason whatsoever, but can only cancel it for reasons having
to do with safety, etc
- Discretionary grants of power can’t be exercise for improper purposes
- Decision-makers must take all relevant considerations into account
Cartwright J (dissent) – attitude toward discretion: same attitude most CML judges had toward admin
tribunals who had broad grants of discretion – Victorian conception of rule of law
- Says liquor licence is a privilege not a right
- Rights/Privilege distinction. Property rights, contract, torts rights = full-blooded, pre-existing
legal rights
- Things that do not conform to rights that arise as a matter of private law do not occupy the same
space in his way of thinking – they are privileges. The privilege holders has no claim to them
except for the claim that can be based in the statute
- Judicial/Administrative – judicial and quasi-judicial settings are those where judges are deciding
cases on basis of pre-existing rights and legal privileges to establish the rights and obligations of
the parties before them. Admin proceedings are diff – they are a law unto themselves. Not making
decision on basis of pre-existing principle. They are making decision on basis of policy
considerations.
- Policy/Law – Traditional, orthodox view of CML judges – will often say rather than overturning
decision as capricious, etc. the best response is to take hand-off approach. To say these people are
involved in policy not law – they will cut down admin state and make sure that peoples’ CML
private property rights are protected. But where those rights butt up against entitlement given by
5
leg – the leg will be viewed as suspect and infringing on private order and read down.
Ratio:
- Rule of law: taken to say that someone exercising discretionary power under statute must
always make decision on the basis of relevant considerations not on the basis of improper
purposes and must be made in good faith. Publicly granted power is necessarily limited to
purposes of that power.
- Public power must be exercised in good faith & in a manner consistent with the purpose of the
law. There is no absolute discretion. This is a fundamental CONSTITUTIONAL principle.
- 2 contrasting views of public admin – tensions
- Fox-decent – isn’t there something to Cartwright’s claim that the leg could have written it in if
they wanted to define discretion
- So if the leg refrained from adding the def – what is the basis for Rand to come in after and
adding requirement of cause for revoking a licence?
o Is it up to judges to change leg?
o Cartwright says remedy is available – who we vote for.
o BUT – the Witnesses are never going to be a majority. So we need protection for
minorities (even if they are unpopular). Rule of law
- Although we may be sympathetic to Roncarelli – there needs to be more of a basis for Rand’s
judgment – he lists several
o Misusing public power is tantamount of fraud or corruption
- How did Roncarelli get through shield of public immunity to private action – because Duplessi
ordered the revocation of the licence w/o statutory warrant outside the duties attached to his
public office, he did the act as a private citizen – loses immunity
- Fox-Decent – this case is so ahead of its time. Comes up 40 years later in Pinochet.
Rule of Law
Dicey – the UK constitutional system has 2 basic pillars – sovereignty and rule of law. If
parliament says something, judges have to apply law as parliament intended.
Generally taken to stand for the idea that civil society ought to be governed by general rules announce in
advance of their application so that people subject to these rules can plan their lives and guide their
conduct accordingly. Clear and public.
 [1] Everyone is subject to the Law
 [2] Separation of Powers  Independent Judiciary
- As opposed to rule of monarch for example who changes law as they go
- So when there’s a dispute, there has to be someone there to settle the dispute
- Idea of independent judiciary – principle that goes back to roman times
o 1608 – Dr. Bonams’ Case. College of physicians fined him. He took case to King’s crt. If
there is a dispute we have to find an independent and impartial adjudicator. Not for one
party to impose their will on another. Rule of law stands for: no party can be judge and
party for same cause of action.
- The state is set up to provide for peaceful resolution of disputes
- As part of idea that leg must be clear and forward looking – when there are disputes about leg,
you have to have an arbitrator who is independent and impartial judiciary
- There must also be an enforcement mechanism (such as police). But even policy discretionary
power can be abused.
- 2 most imp aspects – formal constraints on leg and independent judiciary
- Mirror what Dicey thought to be 2 principles of UK constitution: parliament and rule of law
(meaning independent judiciary for everyone – including public officials)
6
-
But nothing limits kind of leg that can be passed. Parliament, in principle, can pass laws that are
highly discriminatory and it would not be a violation of rule of law.
FORMAL RoL  goes to the way law is formulated
 Must be rules, which should be:
o publicly known/knowable, clear, consistent, practical, constant, not retroactive
 These are formal constraints that have nothing to do with content/substance of legislation
SUBSTANTIVE RoL  Ideas of human rights/fundamental values
 Substantive RoL includes formalities
 Even if a law conforms with the proper form, it can be substantively unlawful
 Goes further to say that, if they have objectionable content, they violate the RoL
o E.g. American slave laws
 People use human dignity to justify substantive RoL
 By virtue of this human dignity, individuals cannot be used as means to the state’s
-
-
-
Generally widespread consensus that rule of law is consistent with discriminatory practices and
violations of human rights. One has gone so far as to argue that rule of law is consistent with
slavery (Joseph Raz)
2 arguments for slavery being consistent w/ rule of law. Formal view by legal positivists:
o 1. Fundamental basic idea of rule of law is that law should be capable of guiding
behaviour of people subject to it. So we could imagine a slave-owning society in which
there are clear rules on what slave-owners must do to own slaves. We can imagine that
law can guide the conduct of slaves as easily as it can guide conduct of others who are
entirely free and autonomous.
o 2. We are not talking about rule of good liberal political morality. If what we want to talk
about is the rule of law, we can’t be talking about good law. If we talk about good law –
we’re talking about law that is consistent with liberal theory – treating individuals as
having equal moral worth. That’s a political principle. Rule of law is things like if leg
passes law that criminalizes a past act...goes to law’s formulation. The way leg is
formulated and applied. Law that is applied retroactively cannot guide people’s action –
direct violation of rule of law.
Some authors argue that we should talk about formal consideration rather than rule of good law.
Rule of good law comes from political morality
Part of fear of saying that rule of law has to be rule of good law is giving what should belong to le
to judges
o So slavery, according to these thinkers, is just at the far end of bad law.
British Columbia v. Imperial Tobacco Canada Ltd. [2005] SCC
Facts:
- Legislation was passed in BC to collect money from cigarette manufacturers. Leg said anyone
who has produced or distributed tobacco products in BC is liable in BC to par prorated share of
health care costs
- Claims of invalidity: it was extra-territorial, infringed on judicial independence, infringed on rule
of law – no notice. No way of them bringing their behaviour in line with law before they are
liable
- Imperial Tobacco argued that this violated Canada’s conception of the RoL
o Secession Reference’s unwritten constitutional principles [Federalism, Democracy,
RoL/Constitutionalism, Respect for minorities’ rights], included the rule of law
o Preamble to both of our Constitutions implies RoL, bc we are similar in principle to UK
- Imperial argued that the legislation operated retro-actively (which it did to a certain extent) and
7
-
thus violated the constitutional guarantee of the Rule of Law
Imperial also argued that the legislation singled them out from the rest of society
o Similar to old proclamations that someone was to give their property to the King, and
then the King would go take it
o Argued that this breached separation of powers, by allowing property to be taken without
recourse to the judiciary
Issue: Is the Act ultra vires the province?; Is the Act constitutionally invalid, being inconsistent with
judicial independence?; Is the Act constitutionally invalid as offending the rule of law?
Held: No; No; No. The Act is valid.
Reasoning:
- SCC uses opportunity to review jurisprudence on rule of law
o MB language case –
 1. Law is supreme over private individuals and gov’t.
 2. Must be creation and maintenance pf positive legal order
 Crt suspended judgement for 1 year to let gov’t time to translate laws.
 Based on principle – can’t have a lawless society if all laws are declared
invalid
 3. Relationship b/w state and individual must be regulated by law.
- Big tobacco claiming leg was operating retroactively – violation of rule of law
o Use Succession Reference – rule of law is unwritten constitutional principle.
- SCC: that idea of rule of law only applies to criminal law. Brought up tax law – amendments take
time to legislate (Air Canada – retroactive leg precluding Air Canada from getting money back
was upheld by Crt). (Authorson) – gov’t expropriated money from vets (they owed them lots of
interest) – SCC said that when leg is clear, it must be respected)
o Clear statement rule: if leg looks like it is capable of restricting someone’s rights or
expropriation of property, that leg will be read down so that public officials cannot
restrict a person’s right unless that authority is very clearly stated in leg.
- Prohibition on using criminal law retroactively not in s. 11 of Charter.
o Framers had intended to limit parliaments’ ability to frame leg retroactively only in penal
sense
o SCC concludes form this that other retroactive leg is permissible
- SCC – democracy is at stake here – a principle of constitution along with rule of law. So as long
as leg conforms with manner and form requirement, and substantive requirement s of written
constitution, the rule of law cannot act of a bar to consent. Validly of leg will not be struck down
b/c of unwritten principle.
- Also, if court were to strike down leg on basis of unwritten constitutional principle – what could
leg do about it? No notwithstanding clause available. Would preclude leg from legislating in a
certain way – seems to go against what we think scope of leg ought to be in constitutional
democracy.
Ratio:
- RoL is not content-based, it is formal
o Clear and explicit legislation is sufficient to trump CML rights, such as the property
rights here [BUT, legislation cannot trump constitutional rights]
Some believe Judicial Review should be limited – left-leaning social democrats like Aurthers
- review of admin decision should be almost entirely absent
What is the harm?
8
- Historically judicial review cases were labour cases
National Bank Case (1984)
- Fox-Decent – this case is emblematic of why judges should not be involved in judicial review at
all
- Dispute b/w bank and union – union trying to get bargaining unit certified for a certain branch
- June 27, 1980 – one of the branches (of the provincial bank) – notified management that it had
obtained certification for the branch (McGuire Street) – intended to enter into negotiations
- June 30, 1980 – as soon as bank opened, the managers announced the branch was shutting down.
The Provincial bank was merging with national bank and as a result of merger, the branch was
being closed
- As proceeding went through judicial review – the bank admitted that the only reason for shutting
down the branch was to get the union out
o The reason the two merged was to try to escape the scope of the labour leg (if a company
is notified of a certified bargaining unit, and the company ties to sell the branch, the
union follows the sale. The provincial ban is trying to avoid idea of a sale by
restructuring, so that the union wouldn’t follow).
o Union arguing merger constituted a sale, and shutting down the branch was anti-union
(against the code. Once you’re notified, you can’t change the terms or conditions of work
of the employees until collective agreement is established and then only in compliance
with collective agreement).
- Labour relations board found in favour of the union. Merger = sale and motivated by anti-union
animus, did constitute change in working conditions.
o Remedy – labour board said bank had to set up fund within new branch that would be
dedicated towards educating workers and management on labour rights under provincial
labour code.
o Also had to post on walls of new branch a letter telling employees the fund had been
established and that the bank was in breach of labour code and that employees were free
to unionize or not.
- SCC – judicial review. Agree that merger is a sale under leg and was anti-union.
o Bank contesting trust fund and the letter.
- Conclusion – the remedy (compelling company to write and post letter) was characterised as
totalitarian in nature. Can’t compel people to say things they don’t want to say.
- Charter not in force yet – strict reviewed on admin law principles
- Did labour relations board have jurisdiction to impose remedy?
o Remedial power of board is broad but it must be consistent with what leg intended. Leg
never intended that power would be exercised in an authoritarian way.
- The bank was not required to set up fund or post letter?
- What are the bigger social and political effects of the judgement?
o Tellers are historically women – historically viewed as second job in house. Vulnerable
group a workers that financial industry is playing on
o SCC is essentially helping the banks keep them down.
- Fox-Decent – this is not an isolated event. Courts, in critical moments, are intervening in a way
that has dramatically effected people working in vulnerable positions
o Doesn’t it make more sense to give the power to people who know the industry rather
than judges?
The Constitutional Basis of Judicial Review
-
There is no right of judicial review enshrined in any constitutional documents
There was a movement to enshrine the right – resisted out of fear that it would open up admin
decision-making and leg and lionize value of private law ahead of public law
9
-
Imp of public law – is important b/c of inequality of bargaining power.
Labour relationship is tremendously important – remedying inequality of bargaining power
Statutory Removal of Judicial Review – Privative Clauses
 What if a leg includes provision of finality and unreviewableness by a court of inherent jurisdiction?
Legislatures cannot set up administrative tribunals and insulate them completely from judicial
review. Most “privative clauses” which attempt to do this have been struck down or interpreted very
narrowly. (e.g. Crevier).
Challenge to powers of inferior tribunals based on s.96
S.C. struck down privative clause in a Quebec statute that purported to exclude all judicial review of
Quebec’s Professions Tribunal. The reason for the invalidity of the privative clauses was that, by
conferring unreviewable authority on the tribunal, the Quebec legislature was attempting to
constitute a s.96 court. It was the grant of unreviewable authority to the tribunal, rather than the
taking away of the superior court’s power of review, that was unconstitutional (224, Hogg)
Such legislation, it is said, would create a s.96 court.
Nevertheless, the SCC will often defer to administrative tribunals and will not quash their decisions
unless they are patently unreasonable.
Crevier v. Quebec (Attorney General) [1981] SCC
Facts:
- The QC Professional Tribunal acts as an overarching administrative body to hear appeals from
various disciplinary committees. The enabling statute contained a privative clause, that, by reference
to other legislation, disallowed the right to appeal to superior courts.
o
o
o
Relies on interplay of two bodies of law (2 statutes)
Decision of professions tribunal are to be final but also not to be subject to certain codes
of the QC CCP that invite judicial review
All the decision of the tribunal are biding and final and not subject to judicial review
Issue: Is the power exercised by the tribunal constitutional?
Held: No.
Reasoning:
Laskin J – 2 things questionable about judgement in Crevier and the statutory scheme
- 1. Provincial leg can’t establish through leg an admin agencies that has the same purpose and
function has a court of inherent jurisdiction (s. 96)
o Only the fed crown has power to appoint judges to courts of inherent jurisdiction through
s. 96. So to set up an admin agency would be, for the provinces, to usurp fed power.
Residential Tenancies – test to determine if an admin agencies should be considered to be a s. 96 court
- 1. Is the subject matter that the admin agency dealing with subject matter that a s. 96 court would
have dealt with in 1867
o landlord/tenant disputes – yes s. 96 court in 1867
- 2. Is the power exercised by admin agency judicial or administrative
o things to look at: is it b/w two private parties (would be judicial)? Is the decision making
more adjudicative (judicial)?
- 3. is the institutional setting in which the power is being exercised or decision is being made one
that makes the judicial decision ancillary/necessarily incidental to a larger scheme that is within
the jurisdiction of the entity under review
o Labour relations boards are an example of a broader institutional regulatory scheme
o Human rights tribunals exist w/i larger institutional settings. Lets judges say that they are
not usurping role of s. 96 court
10
o
-
-
The kind that might be usurping the role is the kind that is detached from a particular leg
public law scheme – existing solely as an appellate court
o This is how the professions tribunal was established – did not have a basis in the relevant
statute governing professions. Sat in a sole adjudicative position.
On basis of Residential Tenancies – Laskin says professions board is ousting power of s. 96 court.
So the province in establishing the tribunal, made it into a federal domain.
Decision-making power of tribunal was protected by privative clause. So Laskin had to deicide
the effect of these sorts of clauses
o Previously court had held reach of the privative clauses as limited to decision made w/i
the jurisdiction of the tribunal. But for those deemed ultra vires (outside) the tribunal’s
jurisdiction, privative clauses will provide no protection.
o Judges will argue that prov. leg always, when delegating authority, delegate limited
authority – authority to act w/i certain specific statutory purposes. Will also argue that
given ind. of judiciary and separation of power and role of judiciary to ensure power
delegated to admin in used exclusive for the purpose that the power was delegated, it’s
only the judiciary that can police that.
o Preliminary question – jurisdictional question: does this tribunal have authority to make
these sorts of decisions at all
 This is what court was asking in National Bank of the labour relations board.
There, court said no.
Laskin: 2 things wrong:
o 1. On substance of decision – the tribunal is replicated a s. 96 court – invading the fed
domain to the extent that only the fe crown can appoint judges to s. 96 courts
o 2. Prov is attempting to insulate the decision of the tribunal through privative clause
So privative clauses protect within jurisdiction but not outside
- No matter how clearly a privative clause pre-empts review, courts will always have the authority
to review jurisdictional matters with respect to professional tribunals.
- Courts ought to adopt deference with respect to questions of law, but with respect to questions of
jurisdiction there is no immunity.
- The difference between questions of law and questions of jurisdiction is slippery.
- Historically this has been most prevalent in labour law; courts will allege that labour relations
boards exceeded their jurisdiction in order to allow appeal.
- Reviewing the substance of decisions have been done through a pragmatic approach to avoid
having to distinguish questions of jurisdiction from questions of law
o Fox-Decent – how do we articulate diff b/w simple error of law like misinterpreting the
statute and an error that takes tribunal outside jurisdiction
o No one has been able to answer this
o Ex. CUPE – what is an employee (include manager workers or not)? If they are
employees, can’t work during strike. Statute defines who is included as employee
 If crt on review determines that the board made a bad interpretation of the term –
it’s only a small step to say the board is acting on a power that the leg did not
give it?
 This is a problem
- Always a question of how you characterize the scope of the jurisdiction
- Fox-Decent – Jurisdiction is the biggest weasel worm in admin law – b/c any error, with very
little judicial craft, can characterize it as an error of jurisdiction
o No good way to distinguish simple error form jurisdictional errors
o Arthurs – only good way to get rid of this is get rid of judicial review
11
-
-
 Except where it is specifically provided for
Pg 39 of Arthurs (footnote) – leg had not attempted to say not to review jurisdiction
o BC gov’t tried to tell judges not to review jurisdiction bounds of agencies or the decisions
on basis of jurisdiction
o 1979 – s. 33 added to BC Labour Code. Board has exclusive jurisdiction to determine its
jurisdiction...The judges ignored this clause
o In a democracy where people speak through leg – how can we justify judges ignoring
clauses like this?
What implications does Crevier have for federally constituted tribunals? Wouldn’t infringe b/c
the feds are setting it up
Fox-Decent – the s. 96 argument is a smoke screen – there is just something intrinsic to the way
in which the state is structure that requires separate branch of state to have final say on delegation
of powers from leg.
o Bit of a misnomer – the fact that crt conduct review of fed agencies the same way they
conduct review of provincial agencies
o Don’t take privative clauses on their face – underlying commitment to idea that judges
are sole people capable of understanding consequences of rule of law and policy admin
bodies
Harry Arthurs, “Protection against Judicial Review”
- the judges come from a specific legalistic (private law) background – maybe not in best
position to be making decision so specific to particular industries
o Think rule of law is a bully club being used to suppress admin tribunals
o Argues – who is in a better position to interpret intent of leg – someone who is
not an expert in the field (like a judge) or someone who is an expert (admin
tribunal). Admin tribunal can look at it in terms of how it will affect industry into
the future, aware of future consequences and of the negotiation that went ito
drafting the provisions. Judges are backward looking at the specific incident.
o Which of the two is best able to interpret the democratic will of the leg? Who ever
that is, is arguable best able to discharge resp. under the rule of law – getting rid
of arbitrariness and replacing it with our collective will. Fox-Decent – it’s hard to
see judges as the best people to make these decisions.
o Adjudication is about identifying a wrong and imposing a remedy
- Fox-Decent – fairness and reasonableness never exists in abstract always exists in
statutory schemes
The Role of Judicial Review
Baker v. Canada (Minister of Citizenship and Immigration) [1999] SCC
Facts:
- Baker came to Canada on visitor’s visa; stayed in Canada illegally for 11 years; had 4 children,
all are Can citizens b/c they were all born in Canada. She was ordered deported; she applied for a
Humanitarian & Compassionate exemption, which the Minister was entitled to give; this was
rejected.
- Baker alleged at the Federal Court, that b/c Canada had ratified Convention of the Right of the
Child, the best interests of the Child must be treated as a primary consideration. The children had
been taken into consideration, but almost as a NEGATIVE factor. Fed trial & Fed CA found that
the children had been taken into consideration and there was no bad faith or improper exercise of
power.
12
-
Appeal was allowed by the Legislation if the Federal Trial Division found that there was a
‘question of importance’
Issue: Did the H&C decision maker properly exercise their discretion? Does this involved a
consideration of the best interests of the child?
Held: No. Yes.
Comments:
- SCC – quashed the decision it was sent back.
- She was grated a stay and permanent resident status
- So does this mean that an overstayer with children get to stay in Can? No. It means the interests
of the children establish a justificatory threshold. It’s still a discretionary decision but one that
give significant weight to interests of children.
- The leg decided to revisit leg after this case – in 2002 a new immigration act came into force. S.
114.2 of old act gave minister the authority to grant relief. That is now in s. 25 of new act – but
redrafted – Minister can grant relief for reasons of public policy and children’s interest must be
taken into account. So there is now a statutory requirement that children’s interest be given
consideration
- So this is a good example of dialogue theory between courts and leg.
Substantive Review
The law up to this point had been relatively clear  the Minister had pretty much absolute discretion
- The court went further than simple bias to look at substance because she wanted to clarify the
area of discretionary decision-making
- If they didn’t go on to look at the substance, they were leaving decision-making to blind luck
- They didn’t want the only avenue of appeal to be a blatant bias
- They needed to clarify the legal framework so policy-makers know that they can’t act completely
arbitrarily
Old rule – discretionary exercise of authority stand unless they are patently unreasonable
L’H-D – new rule for standard of review – apply Pragmatic and Functional approach to determine
standard of review that should apply
- Correctness - Decision-maker reached the correct outcome [i.e. the outcome the court would
have reached]. This has to do with the outcome of the decision
- Reasonableness simpliciter - They don’t need to have reached the same decision that the court
would have, BUT there must be adequate reasons to deduce a reasonable decision, based on a
“somewhat probing examination” [Iaccobucci J., in Southam – before Southam this did not exist]
o Based on facts, and drawable inferences
o This has to do with the reasons for the decision
- Patent unreasonableness - Courts will intervene only if a decision appears perverse on its face
4 elements to determine which one to use: The Elements of Pragmatic and Functional Approach
- Purpose: does it involve several people or is it direct application of a decision to an individual?
HD says this is relevant with respect to the statutory provision in the Immigration Act that lets
people apply for relief on humanitarian grounds as well as the Act as a whole. Does this tend
toward more or less deference? The court says it’s mixed. The decision is highly discretionary,
so it tends to fall closer to the patent unreasonableness side of the equation. However, the
decision does pit the minister against an individual where very important interests are at stake.
- Privative clause: if there is one, that means more (not complete) deference. The question of
whether there is a privative clause is asked within the context of the larger statutory scheme. For
13
example, in addition to asking whether there is a privative clause, courts will also ask if there is a
statutory right of appeal? If there is a statutory right of appeal, that means less deference.
- Expertise of the decision maker: clearly, questions of policy are going to influence decision
makers in an immigration setting, e.g., wanting people to comply with laws versus sensitivity to
humanitarian grounds (which is mandated by the statute). So more deference is owed to the
decision maker.
- Question of law, fact, or mixed: If it’s purely a question of law, this will suggest less deference.
If it’s a question of fact (let’s say there was a dispute as to how long Baker had been in the
country), then there would be more deference.
So correctness is too invasive, patent unreasonableness is too deferential – So compromise is
reasonableness simpliciter as appropriate standard
L’H-D cites five indicia that determine if a decision is lawful: She says that when someone is exercising
discretion, they have to do so consistent with 5 criteria. The following are criteria for determining the
reasonableness of a decision that is subject to the standard of reasonableness simpliciter:
1. Objectives of the Act – the bounds of the statutes impose limits on the kind of power that can be
exercised under statute – only for purpose for which it’s granted
2. Rule of Law
3. Principles of admin law
4. Charter/Charter values
5. Fundamental values of Canadian society – critical fundamental value at stake here is best interest of
the children. How are those interests treated in admin procedures?
- Have to go beyond Roncarelli - Have to look at the values underlying the grant of discretion.
Looks to the following to identify something that might be a fundamental value of Canadian
society
o 1. Objectives of the act – one of the purposes of the act is family reunification (even if
parents are not citizens and have overstayed welcome)
o 2. International law – recognizes that ratified law (that is not explicitly implemented) is
of no force. We can’t apply CRC terms directly. Avoids terms primary consideration
(words of the CRC) to avoid charge that she is letting convention in through the back
door.
o 3. Minister’s guidelines – look for things like undeserved hardship, ha the person lived as
a de facto resident – have connections and an established life. Fox-Decent – one of the
problems is that guidelines often referred to as soft law.
o Baker speaks to legal significance of the guidelines. L’H-D – the guidelines do not bind
the officials (strictly speaking not law) but they are “of great assistance” in determining
what a reasonable exercise of discretion would look like. Turns expertise argument on its
head – Should use what expert (minister) has put on paper. Ought to be relevant
considerations that should inform a decision-maker. Expertise suggests we should differ
but also suggests we look to what the Minister has said. Help to flesh out the constitutive
parts of a contextual approach to statutory interpretation.
Role of International Law
L’H-D
- Court looks to those sources of law as evidence of the kinds of considerations that decision
makers must have regard for when making these decisions
- L’H-D – international law cannot be applied directly but it can provide a context. It is sufficient
to presume that Parliament enacts law cognizant of the int’l legal framework within which it is
working. So Parliament’s law should be interpreted in a manner that is consistent w/ requirement
of int’l law.
- Decisions makers in this case – were not alert to the interests of the children.
14
Minority
- Although the Convention had been ratified in int’l law; but had not been implemented into
Federal or Provincial legislation & therefore is not part of Canada’s domestic law
- Imm Canada cannot be bound by the convention; this would but them under a legal obligation
authorized by the executive, but not the legislature…
- Automatic incorporation of int’l conventions violate the separation of powers
Could Baker have been decided on Charter grounds? Why did the Court prefer to use admin law
rather than the Charter?
- Before the SCC – Baker’s lawyer and a number of interveners argued that Baker’s security
interests under s. 7 were in fringed – by importing her to Jamaica would have separated her from
her 2 Canadian-born children who were living with their father as well as possibly lead to a
separation from her other 2 children
- In 1999 – SCC found that in a custody dispute where provincial authorities were seeking to
extend a separation order (separating mother from her children) triggered s. 7 – given
psychological stress that separation would entail
- Here, L’H-D didn’t consider the Charter argument at all
- Why did the court here opt to consider this case only on admin grounds when the Charter is
supreme law in Canada?
- Court has held that w/i s. 7 the principles of fundamental justice include duties of procedural
fairness
- Langner (1996)– deportation case involving a polish couple w/ Canadian-born children). Made
similar argument to Baker about nest interests of the children. But SCC asked if the immigration
law would be held up simply b/c someone has children in Canada.
- In Baker – no real discussion of division of powers in relation to CRC. If the case were decided
on Charter grounds in her favour it might define a constitutional right to remain in Canada once
one has children.
o Speaks to a general sense and inclination of judges to use admin law rather than the
charter when they can do so. Grounded in an attitude of deference to the leg.
- In AUS – Teho case – similar to Baker, with difference that Teho was involved in some criminal
activities. Denied refugee status and subject to deportation order. Had children in AUS. Applied
for judicial review on deportation. Majority said that be/c the executive had ratified CRC that
Teho had legitimate expectations that his children’s interests would be a primary consideration –
have to be overriding public interest to deport him.
o Public uproar – thought judges were usurping power of leg.
o But Teho not mentioned in Baker – despite many similarities
o Fox-Decent – court wanted to get away from controversy that Teho had created. Wanted
to use admin principles to avoid controversy and b/c of overarching deference to
democracy. If case had been decided on Charter – there would have been no simple resort
to legislation.
- Generally – s. 7 has been entry way of procedural rights b/c of mention of fundamental justice –
we will look at this later
Procedural Fairness
- Baker’s lawyer had asked for a fill hearing b/f immigration office to have reasons for the decision
and also that the children be granted standing
- Crown agreed that some duty of procedural duty was owed but that the requirements of fairness
were minimal
- SCC – in this kind of case it’s not necessary to grant a full oral hearing nor standing to the
children. All that’s necessary is that minister or delegate receive written submission from the
individual and that the submissions be allowed to speak to the humanitarian and compassionate
15
grounds to grant a stay of deportation. Once these grounds are met – her participatory rights are
satisfied:
o These all some under idea of the duty of procedural fairness – duty to hear the other side
and for the decision to be taken by a decision maker who is impartial and independent
1. Participatory rights –
- SCC developed 5 contextual considerations for the sake of guiding future courts in coming to
determinations about what kinds of procedural safeguards will satisfy procedural fairness – these
are for participatory rights
- 1. Nature of the decision being made – if things are more judicial than admin – need more
safeguards
- 2. Nature of statutory scheme and role of commission in that scheme – if the decision is a
final decision w/i scheme from which, w/i the scheme, no appeal is possible, more safeguards
needed
- 3. Importance of decision – Before, where someone is seeking a privilege rather than an
antecedent right – more reluctant to impose procedural safeguards. L’H-D gets rid of this
distinction – historically, immigration status is a matter of privilege. Until someone is a citizen,
they may be subject to deportation. L’H-D, it’s not just about vindicating rights, it’s about
ensuring integrity of legal system in which we do not justify improper use of power.
o Focus on interests as opposed to finding concrete legal right
o This opens a range of fields where a duty of procedural fairness may apply
o By saying we will look at importance of interest – Baker stands for a revolutionary
principle that public law is not to be considered law aimed at vindicating pre-existing
rights – it’s about the relationship b/w the state and the people subject to its authority.
State asserts power, but it must be justified - 4. Legitimate expectations – A person can have a leg expectations toward a public authority if
that authority has said or done something to lead a reasonable person in that position to think their
case will be decided in a certain way or in accordance with certain criteria
o Commonwealth view (but not Can) – where there is an expectation the public authority
has to deliver on it
o In Can – courts are clear to say leg expectations only go to content of procedural rights –
no substantive implications. Leg expectations can influence procedural fairness: 1) may
suggest that some procedural duties are due – brings you across the threshold; 2) add to
the content of procedural fairness.
 If authority gives promise of particular outcome – there is no legitimate
expectations that you will get that outcome.
- 5. The decision maker’s procedures – impractical and to have each and every decision made
after oral hearing. Merits lie with decision-maker
- SCC – children not given standing – in practice, Baker’s lawyer is capable of articulating the
significance of children’s interests
o Also don’t need a full hearing to communicate the importance – written submissions are
enough
2. Duty to give reasons – applies throughout decision making process. Historically, no duty to give
reasons – b/c can’t impose positive obligations on judges? There were some exceptions
- L’H-D – reasons allow people to understand they are meaningful participants (human dignity),
and they help to establish record that can be useful for purposes of appeal and judicial review
o There ought to be CML duty to give reasons
o Criteria (if duties to give reasons is owed) – importance of the decision – based on the
interest of the person (deportation is enough to require duty to give reasons)
16
Baker – general rule is now where there are important interests at stake, reasons are due –
onus on public authority reluctant to give reasons to justify why not
Fox-Decent – there is a danger that requiring reasons will create a backlog and slow things down.
How does L’H-D address this? And is her attempt in addressing it successful?
First, she accepts as reasons not just reasons written by primary decision-maker. Here, the notes
are made by junior officer.
o This approach to the duty has been taken to say that anything will do to satisfy the
requirement. Symbolic duty – have to provide something written but the reasons don’t
have the be capable of justifying the decision
o
-
3. Issue of bias
- if the decision-maker has an interest in the decision
- other cases have to do w/ the attitude of the decision-make. Courts are relatively lenient –
decision-makers are allowed to have political views – but crts fix on idea that decision-makers
can’t say political things during the hearing itself that would give rise to a reasonable
apprehension of bias – that would lead reasonable person to believe that the decision-maker is not
of an open mind.
- In Baker – notes were evidence of a closed mind – dismissive of the children. This is bias – his
mind is already made up.
Part II: Administrative Procedures and the Duty of Fairness
Introduction and Historical Overview
Mullen distinguishes b/w: 1) threshold issue; 2) content issue
- Threshold – does this decision-maker owe a duty of procedural fairness
o Importance of the decision
o If decision is not a final decision – sometimes held to be a reason for no duty to
be owed
o Of the decision is leg or policy-like could also be used to say no duty is owed
- Content – if the duty is owed, what is the content of it
Unless there was a specific basis for procedural fairness in the statue, judges were reluctant to impose the
duty. Largely b/c commonwealth judges (like Lord Hewatt) were hostile to admin state
- As a consequence in late 19th c and beginning of 20th c – often difficult for people to get courts to
agree that they could have a hearing before a decision is made that might affect their interests
- Nakkuda – textile dealer whose licence was revoked w/o hearing. Crt said no basis in statute to
require hearing, it wasn’t for the crt to require that a hearing be given. Basis – licences are a
privilege – not a right.
- Calgary Power – Crt held that a landowner was not entitled to hearing prior to expropriation of
land. Crt said the Minister wasn’t under obligation b/c the Minister wasn’t under ob to act
judicially.
o High water mark of rejection
o Had to show you had right and superadded duty to act judicially.
Formalistic understanding of law
17
Cooper v. Board of Works for Wandsworth District [1863] ENG
Facts:
- Cooper was a builder; started to build a house and a municipal board ordered the house
demolished (an demolished it) without giving him any notice. The basis of demolishing it was a
provision in the enabling statute that required builders to give 7 days notice to the municipal
authority. Cooper had only given 5 days notice…
Issue:
Held:
Reasoning:
- Chief Justice Erle – in this sort of case, it is undisputed that, on a strict interpretation of statute,
the Board does have authority to tear down any building commenced without their authorization
but for them to do so, without notice or a hearing for Cooper to explain himself, was to deny
Cooper “natural justice”
o First reason – no harm can come from giving notice to Cooper and allowing him to
respond
o Second reason – (more compelling reason) the authority that the Board is exercising is a
legal authority – authority that it enjoys by virtue of statute. So, the power has to be
exercises legally. The court foresaw some of the reasons given in Roncarelli. Must, at
very least, exercise power on basis of all relevant considerations. To know the
considerations, one has to consult with the individual to know his views. Without doing
so, the board cannot conclude they had taken into account all the relevant considerations.
What if Cooper’s notice had been lost in the mail, for example.
o Third reason – the decision making process anticipates the Board making the decision at
first instance followed by an available appeal process. So if no notice or hearing is
provided, then point of the appellate process is subverted. Point of appellate process is to
determine if board has authority and should be able to demolish house. Cooper can’t take
advantage of appellate processes if he is not part of any process from the beginning.
 Later, L’H-D requires reasons to provide a record of the process – same kind of
thing.
- It may be true that there is no explicit requirement in statute for board to notify Copper or provide
hearing, the omission of the statute is supplied by the CML. CML does included principles of
natural justice – which provides that in public law, notice is provided.
-
Depending on what we think the ultimate justification for judicial review is could have serious
consequences: judges are cautious of interfering with legislative role, esp. in public law
- 1. Procedural fairness only if based in statute: no justification. Court was wrong
- 2. Legislative Intent: are the courts filling in a leg omission? Are judges trying to give
expression to legislative intent when they do judicial review?
 based on ‘legislative intent’
 presumption that the legislature intends that public powers will be exercised
consistently with principles of natural justice and fairness
 leg never wants powers exercised arbitrarily
 3. As a CML Right:
 comes from “implied bill of rights”. Individuals have a freestanding right to fairness
(autonomous CML right view). Implied bill of rights. People have certain protections
implicit in CML.
18

-
-
legislation & administrative action must be consistent with certain fundamental
principles that judges are permitted to enforce
 Tension – if these exist, there will be a tension with democracy – going against what
leg says if we think there are certain inalienable rights. Stands in contrast to historical
view of Parliament as sovereign.
For the most part, if you chose 2 or 3, it won’t make much of a difference. Generally speaking,
there will be an overlap between CML rights and what we assume leg intends.
o But in margins – there is still a controversy over what rights people have independently
of what leg says especially when leg has been clear to give broad discretionary powers
(for example, in same sex relationships, or immigration)
In Cooper – statute is entirely silent about notice. But did give authority to Board of Works to
demolish house....
One of the advantages of non constitutional judicial review is that it allows leg to go back and
amend legislation
Emergence of the Duty of Fairness
Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [1979] SCC
Facts:
- A police constable is hired by the city & worked for 15 months before he was dismissed. The
Police Act said that he could be dismissed without cause for up to 18 months (a probationary
period). However, according to the Act, any sort of disciplinary action requires a hearing. It is
silent as to whether this applies to dismissal before 18 months service. No reasons are given to
Nicholson to support the decision.
Issue: Is Nicholson entitled to a hearing?
Held: Yes
Reasoning:
- SCC - 5/4 decision (Laskin: majority, Martland: minority)
o Calgary Power – Minister in AB had ordered that land be expropriated without giving
person hearing or chance to contest expropriation. Martland said that was fine. B/c the
Minister made the decision, that was an admin decision not a judicial one. No rights
“natural justice” at stake in admin decisions.
- Martland – admin decision, no legal obligation to provide reasons or a hearing.
o Judicial review should not impose a hearing
- Laskin – hard to overcome this type of reasoning b/c it had dominated CML world until mid1900s
o Until Ridge (UK) – established three-tier classification scheme for thinking about
employment relationships
- Court used this scheme in Nicholson:
- 1) Master/servant – pure CML, contractual relationship. No duty of procedural fairness
- 2) “at pleasure” – public employees. No reasons necessary for dismissal. Can be dismissed
without hearing
- 3) “for cause” – public employees who can only be dismissed for cause. Has to be some
justification for dismissal, usually based on considerable wrongdoing by employee.
- Laskin: 1) it is anachronistic to think someone who holds this type of job is in a master servant
relationship (there is a statute). 2) Amended act has no “at pleasure” reference to probationary
19
constables. Constables are not really at pleasure employees. Suggests halfway house between at
pleasure and for cause.
o On facts – Nicholson more closely falls into “for cause”
o But even if we assume that Board can dismiss Nicholson for any reason, it doesn’t follow
that Nicholson should not have opportunity to present his case.
o Have to get away from quasi-judicial/judicial distinction. Admin decision can give rise to
duty of fairness – should have some ability to present one’s case.
o Although statute gave Board power to dismiss, those facts did not suggest the Board did
not owe Nicholson a hearing.
o Decision of Board to fire Nicholson was quashed, sent back to board for further
consideration
Difficult to see which underlying justification for judicial review Laskin is relying on.
- Nicholson was due a hearing and an opportunity to be heard (Laskin)
- Martland – failure to give reasons is not a breach of any legal duty
- Ambiguity between 2 possible justifications for reasons even if they are not specifically required
by statute
o If statute requires reasons, hearing, etc, then the decision maker is required to do so as a
matter of law – explicit basis. Typically, lawyers and judges take first cues from statute
o Here, statute is ambiguous – provides for hearing if board is going to institute
disciplinary proceedings against someone on probation, but if they are going to fire them,
they have full authority to do so without reasons.
o Given that leg put its mid to providing safeguards in one circumstances says they thought
of safeguards,
- Martland: If it looks like leg as dealt with a particular matter at one point – can take that to
exhaust what they meant in another matter – so not reasons required
- Laskin – another way to read statute: if we consider that when statute was amended, at pleasure
was dropped. So delegated authority always as to be exercised for proper reasons and in
accordance with certain principles
o Not clear if Laskin thinks procedural fairness is due if you can say judges are supplying
omission of leg – giving ind. entitlement that leg would have given them if they
considered it; or if he’s saying that it is a matter of CML – implied bill of rights or
unwritten CML constitution – individuals subject to statutory power have some basic
entitlement to procedural fairness
So three alternatives:
1) Procedural fairness only if basis in statute – Martland. Judges are supposed to interpret law. To provide
a right to a hearing it can be argued that they are making law by creating a right that was not in statute.
Martland – role is to interpret
2) “Legislative intent”
3) CML right
Fox-Decent’s pet theory:
-
-
-
issue that revolves around the worry about sources of law. Some judges will only look to leg
sources – written down as law.
o Reliance on principles seems to wishy washy a legal basis to say that there is an
obligation due to ind.
o Judges worried about limits of judicial role
Nature of the relationship b/w individuals subject to leg power and the people exercising the
power – how can we think of this relationship
o Some ways it’s contractual – Knight and sort of Nicholson
Laskin makes big deal of the Board’s discretionary power over Nicholson – once a hearing is
granted to Nicholson, the Board has wide discretion to terminate Nicholson after hearing is held.
20
-
-
-
-
-
-
-
Substantive grounds for termination will not be reviewed as long as board is acting in good faith
Some of the characteristics of relationship b/w Nicholson and the board (from Wilson’s 1987
dissent in Frame):
o Discretionary
o It is also unilateral power
o Nicholson is vulnerable to the board
In private law this type of relationship is fiduciary. Later adopted in commercial cases (like Lac
Minerals) – as setting out the sorts of characteristics that we might find in a fiduciary relationship
Fox-Decent – public law can be understood through fiduciary principle. Usually Admin exercises
delegating power over an ind. or group, it’s unilateral and people subject to it are vulnerable
o People entrust Parliament to draft laws for them – people are proprietors of sovereignty.
So leg is like settlor in a trust. People are ultimate beneficiaries. Purposes are supposed
to serve the interests of the people.
At private law – hallmark fiduciary duty is a duty of loyalty. Never to involve yourself or your own
interest in a transaction in which you are acting in a fiduciary capacity for another party
How do we reconcile general public mandate te board has with the legal duties the board might
owe to ind. when it exercises public powers. How does thinking about Board as a fiduciary
enlighten this?
o In some private context the same fiduciary will owe the same duty to multiple people
o Ex. Beneficiaries of a pension fund and the directors of that fund. – have a duty to treat
them equally (here beneficiaries are all in same class)
o More complicated when there are multiple beneficiaries in different classes. Pension fund
director as to consider claims of people who are no longer working with people who are
still working and making contributions
 In 1990s – huge surpluses in pension funds. People who were still contributing
didn’t want to contribute b/c of surplus. But people who were collecting benefits
saying they should still be contributing and surplus should be shared equally.
o How does the court characterize that duty to act loyally
o Cross-fertilization – crts look to public law for inspiration. The kind of duty owed to all
pension people is a duty of fairness. Directors of the fund have to hear all the parties and
take everyone’s interest into account and deal fairly between them. Legally, they would
meet their duty if they give both parties a hearing...
 In these cases, judges look to public law and duty of fairness
Fox-Decent – to understand why duties arise independent of statutes is that people do not related
to one another in ways that are accidental – law gives us relationship within which to think about
relationship b/w public authorities and individuals. Not so hard to see why judges, even without
explicit statutory basis for duty of fairness, might think the duty nevertheless applies.
If we consider Nicholson in light of pension situation – same kind of reasoning. Laskin: all board
has to do is provide hearing, but once hearing is held, it is substantively up to board to make a
decision as long as it’s in good faith.
More theory:
Power of an admin nature has 3 characteristics:
o 1. Power has to be other regarding – can only be exercised for a purpose that doesn’t
involve their own interests
o 2. Institutional – 1) ma be power exercised w/i certain kind of institution; 2) or exercised
under a particular type of doctrine (like the contract). Embedded within social forms with
which we are already familiar and with which we already play
o 3. Purposeful – has to be exercised for certain limited purposes. Not arbitrary
So fiduciary obligation – is an ob to exercise power expressly for the purpose for which it’s held.
Knight v. Indian Head School Division no 19 [1990] SCC
Threshold issue – when is a duty of procedural fairness owed
21
Facts:
- Knight’s contract was coming to an end --- tried to negotiate new contracts – Board did not agree
to his terms and they chose not to renew the contract. Knight stated that his rights had been
breached --- that the Board owed him a duty of fairness, that he should have been granted a
hearing before they made a decision not to renew his contract.
Issue: Does the board owe him a duty of fairness? Have this duty been met?
Held: Yes (with 3 dissenting); Yes. All judges agree on the outcome.
Reasoning:
- Knight won at Crt of Appeal – he was owed procedural fairness. He deserved a hearing. There
has been communication b/w Knight an board, and he had made his views known, but it would be
unfair to dismiss without giving notice that his representations to the board could be cause for
dismissal short of a hearing
- SCC – loses. L’H-D (Majority), Sopinka (Minority)
o Sopinka – uses first approach to fairness – duties due only when statute calls for them
o L’H-D – uses 3rd approach – autonomous right to procedural fairness in some cases
Threshold issue – when will autonomous right to fairness exist?
- In these types of cases look to 3 things relevant to threshold questions. Threshold considerations:
o 1. Relationship b/w parties
o 2. Nature of the decision – was the decision judicial or admin?
o 3. Impact of decisions on individual
Adopting framework from Nicholson which adopted framework from HoL case:
1. Relationship:
o Master/servant
o Holds office at pleasure
o Only be dismissed for cause
- Did Knight old office at please or could he only be dismissed for cause?
- In Nicholson – he was for cause
- Here – the office is held at pleasure – no requirement for the Board to show cause for dismissal if
they chose to dismiss him
- Tension in L’H-D reasons – what is the basis for providing someone procedural safeguards when
rational for those is something like fairness if the decision-maker is not required to show any
cause for dismissal?
2. Nature of decision. Admin/judicial/quasi-judicial nature: Nicholson: this distinction is no longer in
play. Even if it was a judicial or quasi-judicial decision doesn’t mean fairness is not due. Don’t need to
impose all trappings of crt onto admin process. Content of duty is flexible – that content issue feeds back
into prior threshold question that goes to determining whether a duty is owed at all. So, don’t need to rely
on trad. distinction
- new distinction in Knight – admin vs. leg decisions
- Procedural fairness applies to admin decision (Nicholson), but leg (more than just parliament, but
also laws made by other people) decisions are not subject to duty of procedural decisions.
- In Knight – it’s clearly an admin decision – affecting a particular person’s particular interests.
3. Impact of decision – Baker – where interest affected is important to person (even if they don’t have
preexisting CML or statutory right). The fact that it’s import to their future is enough to trigger duty
- 4. Finality of decision – if decision is final in the sense that w/i statute there is no further right of
appeal – procedural fairness will apply. If non final, then procedural fairness to this initial
decision-maker may not apply
But, bigger question: why is it that judges should impose this duty if leg has not seen fit to do so? If leg is
22
supposed to make law – judges may be interfering in work of leg by imposing new obligations.
L’H-D – 2 arguments:
- 1. Argument of accuracy – saw in Cooper. statutory decision-makers have a duty to avail
themselves of all relevant facts and considerations, including the person subject to the decision
o Therefore, the person should be heard
o Fox-Decent – doesn’t do much to justify imposition of duty; Speaks more to what duty of
fairness requires than provides justification. Doesn’t go to heart of providing adequate
justification
- 2. Argument of legitimacy – idea that public has an interest in the proper exercise of all
statutorily-delegated powers, to ensure that they are exercised fairly and reasonably
o Fox-Decent – this doesn’t entirely answer Sopinka’s worry – but it does provide account
of how these duties are imposed within the law itself. All this duty is requiring is that the
decision-maker hear the other side.
L’H-D – depending on strong distinction b/w process and substance. Once the decision maker has heard
the other side, the board’s mere displeasure is enough to justify Knight’s termination. Duty requires board
to communicate reasons for the dismissal – but the reasons can amount to anything.
- Pushes distinction b/c she wants to maintain distinction b/w at pleasure employee and one
dismissed for cause
- All we’re talking about here is procedure. It’s up to the Board to decide if they dismiss him or
not.
- All that she is interested in securing is procedural safeguards – and in doing this, she says that
they are not judging on the merits of the case. Procedure can be judges independently of merit.
How do we determine content of duty of procedural fairness?
- L’H-D – the content of procedural fairness is imminently variable (from Baker). So sometime,
trappings of a crt may be appropriate, but other times, this might be too burdensome.
- Content is determined by the principle that procedural fairness is supposed to serve – letting the
affected party know the case they are to meet and respond to it.
- In Knight – the constitutive elements of duty to fairness (ability for Knight to communicate is
views and know the Board’s response) – had been met in the process leading up to termination
(the communication b/w Knight/his lawyer and the board. Duty is satisfied
- Begin by looking at statute – respect the safeguards within. If the statute doesn’t require
safeguards, can still look to statute or contract to see if they impose any implicit limitations on
what otherwise would be available as a procedural safeguard.
Sopinka – minority. General rule is if procedural safeguards are due, there has to be basis in statue or
contract.
- There can be exceptions in some cases. If statute is not express but there are other indications that
hearings are available in other times – based on reading of overall statutory framework – we can
assume procedural fairness is implied (like in Nicholson – where some people could get hearing –
Laskin imagined hearings would generally be available in that kind of statutory scheme).
- Kind of a middle ground.
- Part of argument – judges supposed to interpret law not make it
- Parallel argument – in employment cases. Nicholson was found to be for cause employees, but
Knight was an at pleasure employee. So what would the purpose be for holding a hearing if after
the hearing, the board’s mere displeasure is enough to justify dismissal? To have a hearing in
these circumstances would make Knight a for cause employee. This is clearly contrary to
statutory framework in Knight.
What is a leg or policy decision? Whether decisions are legislative or policy in nature goes to threshold
question of procedural fairness
23
-
can be understood to have one of 2 features or both
1. Who is making the decisions – if minister or cabinet or someone exercising leg function, then it
might be leg decision.
- 2. The nature of te decision itself – what is the subject matter. Is it the rights and interest of an
individual or a broader social policy?
Who does it affect – discrete individual (admin) or wide constituency (leg)
Limitation on the Scope of the Duty: legislative and policy decisions
-
These issues bear upon the threshold question of when procedural fairness applies
Canada (Attorney General) v. Inuit Tapirisat of Canada [1980] SCC
Facts:
- Rate increase that CRTC had authorized wrt an application from Bell Canada to raise rates for
users telephones.
- Inuit Org filed application with CRTC requesting that the rate increase not apply to them or if it
did apply, that Bell would be required to provide better services
- CRTC took their submission, but granted approval to Bell without conditions
- Statute envisions possibility of appeal to Federal cabinet – as part of appeal process, CRTC is
invited to make submissions to the Minister, and Minister typically makes recommendation to
cabinet.
- Inuit claiming they had no opportunity to be heard directly by cabinet, nor opportunity to know
the CRTC case that the Minister was relying on to make decision
o Have right to know the case they have to meet and respond to it.
Issue: Did the Inuit have right to be heard by Minister?
Held: No.
Reasoning:
- SCC – because the decision made by CRTC and then approved by cabinet was a decision taken
by a body that exercises policy-making function, no duty was owed.
- Estay J: ambiguity. At times rests decision on fact that cabinet itself is quintessentially policy
body. Other time, rests decision on idea that the decision itself was policy like in nature (affects a
wide range of people)
- this is a quintessential policy type decisions. Doesn’t involve a unique party with a discrete right
or interest. Every Bell subscriber is affected by this decision. Flood gates argument – can’t open
up these types of decisions to hearing. Have to allow Ministers and Cabinet to establish policy
and have the last say.
o Also argument that Cabinet is the one making the decision – so decision considered leg
or policy-like in nature.
o When decision is made by decision-maker exercising purely leg function, crts will not
impose duty of procedural fairness
- Discussion – to make an argument for the Inuit in favour of getting a hearing what sort of
arguments could we try?
o The impact of the decision – individuals have a special claim. Not a matter of floodgates.
o But if we do allow this, how do we still not create a burden on administration
 By saying that the content of procedural fairness is eminently variable (Nicholson
and Knight). Tinker with def of group that gets in and then the content of
procedural fairness.
24
Authorson v. Canada (Attorney General) SCC
See previous discussion on rule of law – crts will sometimes read down statutes to protect people’s CML
rights. Ex. Unless statute specifically says that agency is entitled to expropriate land and land owner is not
owed comp – CML rule says the person gets compensation
- clear statement rule – if the leg says that gov’t is entitled to expropriate land for legitimate
purpose, and it says people affected cannot claim comp, then the position of the court has been
that they will not interfere (BC Tobacco – not expropriation but another example of this).
Facts:
- Disabled Veterans have a pension fund set up for them. Every month $ would be deposited into
accounts that the fed gov’t managed. However, almost no interest is paid on these
accounts…after 50 years the interest was a lot of $. The government passes a law that says no
interest is owed and no claims can be brought. Authorson brings the class action on behalf of
thousands of veterans.
Issue: Does the fact that the veterans were denied a fair hearing invalidate the expropriation?
Held: No. No procedural fairness due
Reasoning:
Succeeded at trial and at Crt of Appeal
- Said Crown was acting in fiduciary capacity toward them
- Crown argued this, but then eventually agreed that they had a duty to invest the funds in a interest
earning account – not contested at SCC
- At trial and appeal – vets had right to certain amount of due process as a result of Bill of Rights,
which provides protection for property (s. 1(a)). S. 2(e) – no law can deprive a person of a right to
a fair hearing.
- Based on these, vets argued that due process must mean some process before property is
deprived.
- Both lower crts agreed that even though there was clear leg – the gov’t had some duty to consult
prior to introducing the leg. Because they didn’t there was a breach of due process provision.
SCC – only issue on which Crown is appealing is whether it was lawful for crts below to recognized vets
claim given that fed gov’t through parliament had expressly barred vets from making the claim.
- Crown won the appeal – no doubt it violated duty BUT clearly expropriated claim
o Notwithstanding the due process provision in Bill of Rights – it doesn’t apply to
Parliaments’ law making power.
- SCC – what reasons do they give for thinking bill of rights requirement of due process doesn’t
apply?
o Wasn’t adjudicating a matter – they were just introducing law. Not a decision with which
the courts can interfere
o Due process under Bill of rights applies to admin decisions
o Because there is no hearing, it’s just legislation, due process doesn’t apply
o Reject substantive view of due process that was used in US in early 20th c, where leg
passed by was stuck down on grounds that the leg interfered with employers’ rights, etc.
o SCC – have to be careful of thinking of due process in substantive terms. Where
parliament explicitly bars someone from making a claim there is nothing in the Bill of
Rights to challenge it.
o Crt felt constrained by separation of powers – it’s up to leg not crts to determine
legislation.
25
The provision in Bill of rights are intended to apply to adjudicative decisions – don’t apply to law
that is clear and applies without need of adjudication
o EX. Tax Act is an example of this – people can’t defended themselves against gov’t tax
authority by arguing the right to a hearing prior to enactment.
- Can sense agitation of crt in coming to this decision – clear breach of fiduciary obligation.
- Only way crown can get out of this obligation is for parliament to trump CML. Fiduciary
obligations can always be trumped by clear and express leg – effect was clear expropriation
without compensation
- Crt sympathetic to vets but constrained by leg
Fox-Decent – couple of arguments that could have been tried
- Fiduciary obs are not strictly CML obs. They also arise form equity. ON Crt of Appeal said that if
they have jurisdiction over this means ob of the Crown to the vets was an equitable obligation.
Goes to the very heart of Crown’s legal authority to make and enforce law over people.
o In first nations cases – the “honour of it” ground. There should never be appearance of
sharp dealing. Honour of Crown is at stake – crown cannot profit from wrongdoing
o That is what distinguishes this from a case where policy reasons might justify denial of
comp. Here denial of comp is through dealings of Crown
- Crt was motivated by way gov’t tried to cover up it’s own wrong doing and get them off the hook
– distinguishes it from cases like Imperial Tobacco – here Crown is profiting from wrongdoings.
-
Wells v. Newfoundland SCC
Facts:
- Andy Wells is appointed as Ombudsman. Entitled to hold this office until he is 70
- Eventually, the Public Utilities Board was restructured to get rid of his job
- He lost his job as a result of leg and after having served 4.5 years. Pension would have vested in 5
years
- Gov’t agreed that they had a contract, but the contract was frustrated beyond their control due to
new legislation
Issue:
Held:
Reasoning:
- Gov’t agreed that they had a contract, but the contract was frustrated beyond their control due to
new legislation
- Crt – the gov’t was entitled to restructure the public utilities board, but the legislation that did
this, did not expressly say that Wells lost his entitlement to sue for breach of contract. Contract
allowed him to remain in office for good behaviour until he was 70 – prov. has to show a reason
for dismissing him. Couldn’t show he did anything wrong.
- Gov’t entitled to restructure, but leg must clearly and expressly confiscate Wells’ ability to sue,
he retains his contractual rights.
- Wells is still entitled to sue
- Gov’t arguing this is a leg decision and crts shouldn’t interfere.
- Maintain clear statement rule – there was a clear statement to sue under contract. CML right
remains absent clear leg extinguishing that right.
- Crt says he would have had rights of procedural fairness – but crt says Crown can’t rely on
frustration (they created the frustration).
- Even though it’s a leg/policy decision, doesn’t get rid of underlying CML entitlements unless leg
explicitly gets rid of them
26
Legitimate Expectations
Comes out of Denning decisions of 1970s – most influential = Liverpool Taxi
Liverpool Taxi—NOT IN OUTLINE
Members of a taxi association were told that additional licenses would not be given out until
Facts
they were consulted and legislation was passed. The City of Liverpool issued licenses
anyways, and the taxi association attacked this exercise of power. They claimed they had a
legitimate expectation to be consulted before the municipality issued these licenses.
Did the association have a legitimate expectation to be consulted?
Issues
Yes.
Holding
Reasoning Denning
- given the representation, not only a hearing is required, but the municipality’s issuing
would be legal only if some overriding public interest required it!
Comments - There is not just a procedural component, there is also a substantive component!!!
- This is the key diff between British cases and can cases
Khan—NOT IN OUTLINE
Khan is an immigrant to the UK, wanted to adopt a relative’s child. Te Home office had
Facts
drafted a circular that listed the certain criteria, if followed would permit one to adopt a child.
Khan followed the guidelines, but when the case was determined, the Home Office did not
follow these guidelines.
What is the effect of Khan’s legitimate expectations?
Issues
Holding
Reasoning Partner J - Upheld Liverpool Taxi
- If the Home Office is to use criteria not in the circular upon which Khan had relied, the
Home Office must explain and justify its departure from its publicly declared motis
operandi
- Its not that he was ENTITLED to a favourable determination, but the gov’t must JUSTIFY
when & why they depart from publicly stated policy
- This goes against the traditional view that policy directives are not binding on decisionmakers because they do not have the force of law (not enacted by the legislature)
Ratio
Departure from publicly stated policy gives rise to legitimate expectations that the
departure will be justified. Procedural guarantee, not substative.
In Canada – different view. Legitimate expectation only part of procedural fairness – can’t compel a
decision maker to make a decision based on past promises.
Remedies:
- 1. leg expectation could potential give rise to some duty of procedural fairness
- 2. Where promise is involved to use of procedural safeguard can affect content of duty.
Reference Re Canada Assistance Plan [1991] SCC
Facts:
- Agreement between feds and provinces to share cost of social assistance. Part of agreement
includes termination clause: either party can terminate agreement unilaterally giving on year
notice or with the other’s consent.
- Feds want to reduce payments to BC in accordance with agreement. But they want to do it right
27
away and unilaterally.
Issue: Can legitimate expectations trump parliamentary sovereignty?
Held: No
Reasoning:
- BC seeking judicial review – successful at crt of appeal. Argued that parliament is sovereign
(thread running through case is that one parliament can’t tie the hands of another parliament), but
they are not fettering parliament. But the present gov’t cannot intro a bill into parliament prior to
reforming the law
o This argument alluded to in Wells – can’t say you don’t owe the obligations of a contract
as a result of frustration when you caused the frustration.
- This argument failed at SCC – Sopinka: parliamentary sovereignty would be unduly fettered if
parliament not wholly free to intro bills at its convenience.
o If the feds had to get consent from BC to change law – it would mean that BC would
have a veto over fed leg.
Legitimate expectation arguments made by Sopinka:
- BC arguing that in Old St Boniface – where there is a legitimate expectation it might give rise to
certain procedural entitlements. Surly public legal obligations that bind gov’t as long as it is in
effect give rise to an expectation of procedural obligations. One of the obligations in the contract
was they feds had to get consent.
- Sopinka – legitimate expectations is just part of procedural fairness – can’t guarantee a particular
outcome
- Also, b/c legitimate expectations is only part of doctrine of procedural fairness, and that doctrine
doesn’t apply to leg or policy decisions, procedural fairness doesn’t not apply here. It’s a leg
decision (in two ways: it’s policy and made by Parliament (leg)) - doubly exempt from scope of
procedural fairness
Requiring BCs consent essentially guarantees a substantive outcome  Legitimate expectations do not
give rise to substantive rights
- Parliamentary sovereignty is supreme
- While this only ties the hands of the finance minister, fettering the executive is equivalent to
fettering parliament
- Why should the Feds be forced to consult if they can ignore it anyway?
Comments:
- Fox-Decent - seems to overlook middle ground: given that feds had statutory obligations and
contract – why not, at the very least, make them consult?
- How does this square with Wells – on grounds of expansive notion of parliamentary sovereignty
and restrictive notion of what BC wanted and could get (no real discussion of possibility of
consulting – halfway ground)
o Fox-Decent – Sopinka reluctant to o in this direction b/c he believe parliamentary
sovereignty is such an immutable aspect of Constitution that it is not place of crt to bind
parliament with these types of obligations.
- Seems that Sopinka is gliding over threshold question and fixing on the content of procedural
fairness (BC’s consent) and then determines that that consent would give BC a veto (which is a
substantive outcome) – disqualifies procedural fairness from playing a role (b/c they don’t
guarantee outcomes)
o Fox-Decent – if you at least acknowledge that there is legitimate expectation that gov’t
will comply with law – then we can move to content and say there should be some
28
opportunity for BC to consult with feds.
By requiring this kind of consultation, the implications, impact and policy considerations
that underlie feds desire to renege are at least brought to service – could lead to political
price to pay. More people can be aware when they next go to polls.
“Using the content tail to wave the threshold dog” – Fox-Decent
back tracking from Old St Boniface – avoiding threshold and skipping to content
o
-
Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) [2001] SCC
Facts:
- hospital had been functioning in violation of its licence – had changed from a long-term care
facility to a short and medium term care facility
- discussions with minister – whereupon it was agreed that if the hospital relocated, its licence
would be regularized
- hospital raised the $ and relocated
- hospital went to get its licence updated – but there was now a different minister and different govt
in place– the licence was refused on the grounds that it would costs too much money and this was
not the current govt’s priority
- the hospital sought mandamus to compel the minister to issue the revised licence
- Quebec Superior Court → refused to make such an order on the basis that the doctrine of
legitimate expectation could not be used to achieve substantive outcomes
- Court of Appeal → accepted SC ruling but decided the hospital was entitled to a revised licence
on the basis of public law estoppel
- minister appealed to the SCC
Issue:
Held:
Reasoning:
Majority (Bastarach) – Minister exercised discretion and made decision to grant licence, but granting of
licence was conditional on licence holder acting (moving the hospital). Not a question of new Minster
granting licence, it had already been granted because condition was satisfied. So new gov’t would have to
revoke licence – then they would have to provide reasons.
Concurring (Binnie) – looks at a number of possible arguments that could be made on behalf of hospital,
one of which is legitimate expectations
- Legitimate expectations has taken diff turn in Can than in UK and other Commonwealth
jurisdictions
- Cites Coughlin (UK – where gov’t promised woman she could live at the old age home for the
rest of her life)– not withstanding cost to gov’t in keeping home open, legitimate expectations
don’t just go to matters of procedural fairness. They also have element of substantive fairness if
gov’t is going to be held accountable.
- In Can – procedural not substantive.
o Points to Bendahmane – although only procedural, the distinction b/w process and
substances is not always easy to make.
o Singh – any person making a refugee claim is guaranteed oral hearing. During the time
that this we being implemented, there was a backlog. Gov’t introduced admin scheme to
deal with backlog – anyone in queue who was healthy, etc, could be a refugee.
o Bendahmane was denied refugee status. He is arguing he should have been fast tracked
o Majority of crt – certain procedure had been established and it may be the case that that
29
procedure subject to it will be granted statuts – BUT the fact that he was supposed to be
subject to it and wasn’t gives him grounds for procedural claim
- What is underlying idea in Can that leads judges to limited legitimate expectations to procedure?
- Formal reason: in Can there is an entrenched Charter. In those sorts of cases, judges will be
willing to review leg even though it has big social consequences. Where a Charter right can be
established, crts will deal with complicated social and economic issues in order to interpret and
apply Charter. UK doesn’t really have this, so judges in 70s and 80s were using legitimate
expectations to get at the kinds of broad issues that judges can get at through Charter here. Trying
to ensure that application of public power is not to strict and severe so as to punish someone who
has received a promise from public authority
o But this doesn’t explain the whole reason – lots of admin cases don’t deal with Charter
rights
- Substantive reason (real reason): judges do not believe that they have institutional or personal
confidence to decide matters of social and economic policy. Given that parliament and admin are
presumed to have that confidence, it is illegitimate for judges to step into that domain. Judges do
feel confident about process.
How would Coughlin be decided in Canada?
- all that can happen is that you would potentially get more procedural safeguards than otherwise
- “The Cadillac version of procedural fairness”
- idea that leg and Parliament deal with substance where as courts deal with procedure
- Will push boundary in cases like Bendahmane, where the decision doesn’t upset this rational. Use
procedure to arrive at substantive decision without subverting rational
Baker (section on legitimate expectations)
- In Baker 5, #4 is legitimate expectations
- See page
Constitutional Dimensions: Section 2(e) of the Bill of Rights & Section 7 of the Charter
Charter vs. Judicial Review
- Why would a judge or an individual seek to base a claim on s. 7 of the Charter or s. 1(a) or 2(e) of
the BoR?
- S. 7 ensures procedural fairness but we saw in Nicholson and Knight – procedural fairness is
available autonomously whenever there is an imp interest at stake – so why go through the charter
or BoR and not just rely on judicial review?
o Wilson refers to this in Singh – felt she had to resort to Charter.
o In a case where the statute expressly says no judicial review, the only way to get around
that is to go through Charter
o Statute might specify a particular procedure and if the procedure denies a hearing, the
only way you can attack that statute is by saying it is unconstitutional by depriving
someone of a s. 7 right.
o Judicial review at CML only gives rise to CML entitlement to procedural fairness – only
if statute is silent – in Knight and Nicholson, the statute is silent. But right can be
curtailed by ordinary leg (unless leg violates Charter).
o Going with Charter can get you over certain threshold issues
- Wilson also says it is difficult to think of a case where a person’s life, liberty or security of person
is threatened and where an oral hearing is not required (but could happen exceptionally)
- Where there is a constitutional right at stake – more enhanced, thicker procedural safeguards
30
-
This is not as significant as the threshold issue but it may add to claim that greater safeguards are
due
Baker tells us to look to the importance of the issue at stake...??
Differences in Application of Charter and BoR
- BoR – mainly looking at s. 1(a) – affirms right the right of the individual to life, liberty, security
of the person and enjoyment of property, and the right not to be deprived thereof except by due
process of law; and s. 2(e) – not to deprive someone of fair hearing
- BoR only applies in the federal domain – it is treated as quasi-constitutional but it is an
instrument passed by fed gov’t. It’s application is limited to fed law (so not prov law or prov
admin tribunals)
- Charter applies more broadly to all leg from fed or prov domain.
- BoR applies to laws of Canada whereas Charter applies to Canada’s gov’t
o Not all public bodies (that rely on statutes to exist) will necessarily be covered by Charter
– ex. hospital boards and universities unless deemed to be implementing specific gov’t
policy
o BoR taken to apply within fed domain with just as much breadth as judicial review
- S. 7 of Charter refers to everyone, but SCC decided everyone includes only natural persons. S.
2(e) of BoR refers to persons and persons includes corporations.
- BoR includes reference to property (Authorson) – not in Charter
o Framers of Charter decided not to include property – concern that if Charter explicitly
protects property might act as an impediment of gov’t delivery social assistance – tax
policies might be challenged.
- Charter includes s. 1 – so any rights found in Charter, even if infringed, that infringement can be
saved under s. 1 if demonstrably justified in free and democratic society.
o Not in BoR – raises questions of whether rights in BoR are absolute? Once their scope is
established and delineated, can the gov’t infringe these rights?
o QC Crt of Appeal – s. 2(e), has engaged in balancing approach within principles of
fundamental justice. Similar to what we see occur under s. 7 of Charter
o There is yet to be a single majority decision of SCC that has found a violation of s. 7
justifiable under s. 1
 In BC Motor Vehicle Act – did say that there might be some cases where it would
be justified – war, natural disaster, pandemic
 “Principles of fundamental justice adhere in the basic tenants of our legal
system” – to justify an infringement of s. 7 is to say that there has been an
infringement, and it hasn’t been in accordance with principles of fundamental
justice but we somehow think principles of free and democratic society are more
important – not likely – so inclusion of fundamental principles in s. 7 almost
precludes justification under s. 1
- The critical issue in the BoR jurisprudence is how we understand in s. 2(e) what the BoR is
talking about in determining someone’s rights and obligations
o Before – limited view of rights, narrow scope. Ex. parole is a privilege not a right
o Singh – move toward mush more generous understanding of BoR. Immigration has
historically been seen as privilege not right – rights don’t take effect until someone has
citizenship
 So historically s. 2(e) would not be the type of section judges would rely on.
Wilson – as a result of this history, she would prefer to use s. 7 of Charter
Property Rights
Bill of Rights
Some protections over property (1a & 2e)
Charter
s.7 does not protect property (at least not directly)
Although in Singh, there is some recognition that there
31
Who it benefits
Jurisdiction
“Person” – not just natural persons
Applies to anything that operates under federal
law
- this includes Crown corps,
universities, etc
Constitutional
status
Bill of Rights is quasi-const., but b/c
parliamentary sovereignty cannot bind the
hands of future parliaments (manner & form
requirement)
No s.1 analysis – though there have been
cases where the courts have engaged in
something similar
Built-in procedural fairness: tells us what the
content of that right is (right to a fair hearing)
Justification for
Infringement?
Procedural fairness
is a protection of right to socio-economic necessities
“Everyone” only natural persons, not corps
Applies to all government action  fed, prov &
prerogative
- only applies to gov’t measures, not
universities, etc.
Part of the constitution
s.1
Due process only by implication (principles of
fundamental justice)
National Anti-Poverty Organization v. Canada (Attorney General) [1990] FCA
Facts:
- Similar to Inuit – Bell had incurred number of costs and expenses, wanted comp from CRTC
o wanted to keep money rather than develop new services
- NAPO – claiming that services should be delivered better and less expensively to lower income
homes
- CRTC held public hearing, NAPO made presentation
- CRTC approved Bell’s claim for comp
- NAPO appealed to cabinet – asked for a hearing before cabinet. Placed claim on footing of s. 2(e)
of BoR – decision effects rights and obligations and so prior to cabinet deciding appeal should
have right to fair hearing under principle of fundamental justice
Issue: Did the gov’t owe a duty of procedural fairness?
Held: No
Reasoning:
Stone J.
- everyone is affected by the rate increase, it’s a policy decision, so no duty owed
- Inuit Tapirisat: created the theory of a “unique right”  procedural protections only granted when
decisions affect particular individuals who are affected in some special way by a use on of power
o Their relationship to the agency exercising power must be some way unique
- On judicial review – Fed Crt - found in favour of NAPO. Nothing in BoR says anything about
having to be an individual. Cabinet does have to provide hearing. Got around Inuit by saying SCC
decided the case not taking into account some aspect of relevant law. Neglected to apply s. 2(e) to
the case.
- NAPO also sought judicial review on behalf of one individual – to try to get around formal claim
that they were not a particular individual
Fed Crt of Appeal – no hearing. Used Inuit. Criticised lower crt for criticising SCC.
o Not for us to second guess SCC
- NAPO does not claim to have a particular or unique right to a particular service, because the right is
not unique, s. 2(e) does not apply,
- The lower court cannot overturn Inuit Tapirisat, even though a BoR argument was not raised
- If the SCC wishes to reconsider applicability of BoR, then CA will follow suit, but it is not its
32
business to make that determinations.
Comments:
- Fox-Decent – crt seems to be driven by feeling that determination of rights is best left to leg. And
also determination of appropriate procedures to that kind of decision are best left to admin bodies
where the decision is fundamentally policy in nature (not affecting a particular individual)
Under old refugee act –
- First: claimant gave oral statement giving grounds on which they were claiming refugee status
(have to have well-founded fear of persecution based on 5 grounds: race, religion, membership in
particular social group...) can make claim for convention refugee status. The officer that takes the
statement doesn’t make the decision
- Second: statement file goes to refugee status advisory committee. Review statement and make
recommendation to minister.
- Third: Mister has decision making power, but as a matter of practice will usually go along with
recommendation. No opportunity for oral hearing. Will sometimes give reasons or not – no duty.
- Fourth: refugee claimants had statutory right to appeal to immigration appeals board – ability to
submit further written submissions. Doesn’t necessarily get a hearing or access to arguments
Minster relied on for making decision. Lack of disclosure.
- Fifth: Board can decide that an oral hearing is merited if they think the applicant will succeed at
the hearing – has to have reasonable grounds to get hearing. Statutory requirement not to give
hearing unless there were reasonable grounds to believe the applicant will succeed.
- This 5th step is problematic – Wilson says individual may not have documentary evidence of their
persecution. Only his or her word to convince the board. Often this is not compelling unless made
in person.
o Hard to imagine a case of deprivation of life, liberty or security of person where an oral
hearing should not be given.
Singh v. Canada (Minister of Employment and Immigration) [1985] SCC
Facts:
- Singh was applying as a refugee to remain in Canada. He had applied and been refused refugee
status, made an Appeal, and was not given any opportunity to make a representation to those
making the decision and make a case against the senior official’s reasons (to Committee OR to
Minister).
Issue: Is Singh entitled to procedural fairness?
Held: Yes
Reasoning:
Wilson:
- Because statute denied hearing – have to go to Charter. Act is unconstitutional b/c security of the
person is involved. Threat on life, liberty...is enough to trigger s. 7 – principles of fundamental
justice apply – this includes opportunity for oral hearing in front of a decision-maker
- Crown argues that immigration is a privilege – this is an admin decision not judicial or quasijudicial. Not adversarial context. In these sorts of processes we shouldn’t impose oral hearing –
burdensome and costly
o Wilson’s response is that in refugee context, this is the wrong characterization of what is
going on. The process is adversarial. The adversary is the Minister waiting in the wings.
- Under s. 1, we can take into account issues of admin efficiency, but stakes are just too high. Can’t
33
-
for sake of admin efficiency, sacrifice constitutional rights
o Discussion: does this strike the right balance or push things too far to side of right to
protection?
Wilson felt she had to go to Charter b/c the statutory scheme excluded possibility of oral haring –
she thought hearing necessary in those types of circumstances
o Indication that although Wilson felt she had to use Charter here, she substantive analysis
of the right at stake is linked to her CML understanding o what is required to provide a
fair hearing
Constitutional Dimensions (Undue Delay, Incorporation of Baker Framework under s.7)
Surech v. Canada (Minister of Citizenship and Immigration) [2002] SCC
CML approach to procedural fairness that was systematized in Baker become incorporated under s. 7 in
Suresh
Facts:
- Refugee claimant from Sri Lanka – during process, Minister used CSIS info to conclude that
Suresh was a danger to Canada – issued security certificate against him – began steps to deport
him
- Clear s. 7 interests at stake – life and security
o By time it reached SCC, Crown conceded that there were substantial grounds to believe
he would be tortured if deported
- Crown arguing that he is a danger, and people found to be dangerous are excluded from being
considered convention refugees (if found to have terrorist associations)
Issue: Question on appeal – decision taken under s. 53 of old immigration act: allowed minister to declare
someone a danger to Canada and deportation order follows automatically from that. Had he been given
adequate procedural safeguards?
Held:
Reasoning:
SCC – in this context, to figure out what the safeguards are and what the principles of fundamental justice
are, have to look at 5 considerations from Baker:
- 1. Is the decision more admin or judicial in nature – if judicial (rights and obs of a particular
party, assessment of evidence, etc). If judicial = more safeguards needed
- 2. Role of decision w/i statute – if final more safeguards are due
- 3. Importance of interest at stake – big deal in this case. Not much more important than security
of life
- 4. Legitimate expectations at stake – para 119 Suresh – when crt comes to this part, don’t
expressly say he had legitimate expectations not to be deported since Can had ratified convention
against torture, but crt did find that fact Can had ratified and art. 3 doesn’t allow for deportation if
belief there will be torture – this gives rise to some expectation that he will be provided adequate
safeguards.
o But does he, as a result of the ratification, get more protections than otherwise – FoxDecent: probably not. But interesting that crt did rely on legitimate expectation analysis
to reinforce decision
34
-
5. Deferential element – will take into account the choice of procedures of the decision-maker
since they are presumed to know best (have the expertise).
Statute is silent – no safeguards due
o All that we have in s. 53 is a provision where Minister has discretionary power that he
can exercise as he likes if he is of the opinion the person is a danger
o He had opportunity to make written submissions but couldn’t see the reasons or respond
Using Baker – SCC concludes that this was not sufficient b/c fundamentally, by not getting
discovery of the Minster’s case, Suresh was disentitled to right to a fair hearing.
- Deprived of procedural fairness
- S. 7 includes principles of fundamental justice, fundamental justice includes right to a fair
hearings, right to a fair hearing includes right to full discovery
- Did not find he was entitled to oral hearing. Discover of the Minster’s case including opinion
letters by immigration officials is enough
o This differs from Singh – why the difference?
o Here, although rights are at stake – his credibility is not an issue like in Singh – by this
time, both sides had conceded that he faced risk of torture. Typically, claimant has to
establish this. That issue has been settled in this case.
o The substantive issue at stake here is whether adequate safeguards were given to allow
Suresh to respond to claims the Ministers might make that he is a danger or that given
that he is a danger he should not be departed anyway because of torture. There are other
options besides deportation like detaining them in Can.
o But in the procedure leading up to hearing – whether or not he faced torture would have
been important – he would have needed disclosure.
- SCC is trying the balance need for procedural fairness with a concern that insisting on fully open,
oral hearings will not clog up admin works.
- Not only does crt apply Baker 5 but they apply them more expansively than in Baker.
o In Baker, not discussion of duty to disclose
o And duty to give reasons was discussed after participatory rights had been discussed.
Separate from application of the 5 facts
o Framework was really used in Baker to determine content of the rights that she would get
prior to decisions being made – and right to give reasons comes after decision is made
Duty to Give Reasons
- In Suresh – duty to give reasons within context of Baker 5 – in this sort of case, the duty to give
reasons takes on a diff shade. Have to be responsive and articulate rational basis for believing
person will not be tortured if deported. Or why the circumstances are so exceptional that we have
to depart the person anyway
- Principles of fundamental justice have substantial component that is underpinned by international
law, but it is not an absolute bar on deportation.
- Reasons have to be given by person making decision – not lower ranking officer. And they have
to provide a rational ground for the decision.
- So one of the diff b/w judicial review and Charter, is that some protections under Charter will be
determined in part by application of Baker 5. And some procedural rights – such as duty to give
reasons – will be thicker than what might be available at CML.
Here, interest is greater than in Baker (separated from kids vs. torture) – merit more substantive
safeguards
Blencoe v. British Columbia (Human Rights Commission) [2000] SCC
Facts:
35
-
Blencoe was minister in NDP gov’t – and in 1995 was subject to 2 sexual harassment complaints
against him. Thrown out of caucus
He claims he was subject to unreasonable and undue delay in dealing with these complaints
o Time between complaints and hearing about 32 months has passed.
Blencoe had to wait at least two years for the hearing and there appeared to be about 5 months
where nothing was happening
Files application for judicial review asking crt to stay proceedings: his liberty and security of
person under s. 7 was infringed as a result of abuse of process, and also on admin law grounds
where part of procedural fairness where someone will have their case dealt with w/i reasonable
period of time.
Issue:
Held:
Reasoning:
- There is no explicit provision in constitution that guarantees someone security from unreasonable
delay in admin proceedings (there is in Crim)
Majority – possibly in future cases, but not here, security of the person could be implicated on rounds that
stigma associated due to delay could infringe s. 7
- Given that s. 11(b) in Charter specifically prohibits unreasonable delays in Crim setting and there
is nothing analogous in admin setting, if we were to import 11(b) into s. 7 and expand it to
include admin processes, we would be writing into constitution a protection that is specifically
not provided for.
- Contrary to what framers intended
- The effect must be inordinate or shocking
- This claim for security interested couldn’t succeed b/c it wasn’t just the delay itself that caused
the stigma it was also the publicity around the event. May have been the case that the delay
aggravated the circumstances but it wasn’t the main cause of the stigma
- Fox-Decent – interesting that crt seems to say that crim accusation and admin process are diff.
And remedy that human rights Commission is entitled to assess is supposed to be compensatory
and not punitive. So damage to one’s rep that comes from crim prosecution and investigation by
Commission are different.
-
So, possible s. 7 could be engaged where there is delay of process, but facts of this case don’t
infringe this interest
So what are the principles of fundamental justice going to consist in a case where s. 7 is
triggered?
o Principles will be informed by CML
o Majority – you can have the CML view if delay is so long that it is undue delay. Or the
delay has to be so inordinate or chocking that it places human rights system in disrepute.
Minority (LaBel) – don’t need to look to Charter. CML is good enough to determine if there has been an
unreasonable delay. 3 principles to determine unreasonable delay:
- 1. what are the inherent time requirements of the particular decision at issue
- 2. How long did it in fact take the admin agency to decide matter and how much of delay is a
result of negligence or fault on part of tribunal
- 3. What is impact of delay on individual claiming harm – here LaBel clearly thought impact was
great and commission was aware of it. 5 moths where commission did nothing.
- Fox-Decent – likes this framework. What does it mean to bring human rights system into
disrepute?
36
o
o
There are differences in degree when review occurs under CML or Charter
Look at importance of interest at stake in each case
Constitutional Dimensions con’t (Ex Parte, En Camera Hearings)
Immigration and Refugee Protection Act and securities certificates
- Certificates had been around for a while (were part of old Immigration Act), but has been used
more often since 9/11
o In the last 6-8 years, a number of Arab men have been detained. These men have either
claimed to be convention refugees or that they would be subject to torture if returned
o S. 98 – if there is a direct threat to someone’s life, regardless of the reason, that person
will not be deported
o All this is compromised by certificate process – must be signed by 2 ministers
(Immigration and Public Security)
o CISIS will report that someone has terrorist tendencies or involvement – upon review to
the ministers, the person has no opportunity to respond
o If the person is a foreign national, then the person is detained automatically. If permanent
resident, detention usually follows as a matter of course, but is not automatic. Ministers
have to sign a warrant for arrest of permanent residents.
o Once detained, people have opportunity to have case reviewed. If permanent resident –
has to be reviewed on expedited basis. If foreign nation – can be detained for up to 120
days before a Fed judge is required to review reasonableness of decision
Charkaoui v. Canada (Citizenship and Immigration) [2007] SCC
Facts:
- In 2003, Adil Charkaoui, a permanent resident in Canada since 1995, was arrested and
imprisonned under a security certificate issued by the Solicitor General of Canada and the
Minister of Immigration. The evidence upon which the certificate was issued is secret, disclosed
neither to Charkaoui nor his lawyers.
Issue:
Held:
- Chief Justice McLachlin, writing for a unanimous court, holds that sections 33 and 77 to 85 of the
IRPA unreasonably violates sections 7, 9 and 10 of the Charter.
- On the section 1 analysis for justification of the violation the Court held that the certificate
process was not minimally impairing. The Court cited a clearance system used elsewhere in the
world that would designate certain lawyers to view the evidence on behalf of the accused.
Reasoning:
- Deprivation of liberty – thicker understanding of procedural fairness
o Written submission aren’t enough – must be an oral hearing that must comply with
certain criteria:
 1. Independent and impartial judge
 2. Individual subject to hearing has to have opportunity to know and meet case
they are facing
 3. Judge must also have opportunity to decide case on basis of all available
evidence and law
37
-
-
-
-
In immigration context where there are national security concerns, the gov’t has legitimate
interest in not revealing the sources of the info
Currently, there will be a hearing, but if revealing some of evidence will compromise national
security and judge agrees, then judge is requires to call ex parte, in camera hearing (names person
nor lawyer is allowed to attend).
SCC – although there was a judge involved, the procedural requirements of principles of
fundamental justice were not met
o With only judge to ask questions of Crown there is no way to ensure that evidence relied
upon had be properly tested
o No way to ensure that all legal arguments would be available to present to judge to
consider
o Needs to know case to meet and have opportunity to respond
McLachlin – principled has been infringed but also effectively gutted – how can you meet the
case against you if you can’t know what it is
only conclusions drawn from evidence are available to named person – not the evidence itself
SCC – more has to be done to comply with principles of fundamental justice
o Pointed to way security certificates used to work – where evidence was vetted by org.
overseeing CSIS.
o Also pointed to UK – when crown asks for ex parte, in camera hearing is necessary and
judge agrees, a special advocate will be appointed to represent named person
Decision: because that kind of arrangement not available in Can – principles of fundamental
justice had been compromised
Crt goes through s. 1 analysis – there they said infringement of s.7 and it is not minimally
impaired
o Leg could have chosen less drastic measures that infringe less the s. 7 interests by
complying more with principles of fundamental justice (although perfect compliance is
not possible)
o To show what more can be done showed example of UK.
Comments:
Special advocate system has raised a number of questions
- main objection – in the UK, when special advocate is named and confidential info is revealed, the
advocate has to swear oath that they won’t communicate info to named person or that they will
even communicate at all with named person (has to file a request to communicate – but even if
approved, secret info can’t be revealed)
This judgement clarifies prior confusion
- could mean that in future s. 1 could make a difference
- in determining content of fundamental justice at s. 7 level it was unclear if we had to weigh
interests of society at large
- in Charkaoui – reiterated Malmo – at s. 7 level – no balancing of individual against society.
o Just see if principles of fundamental justice have been satisfied
o If not, can still be saved but saving operation has to be done in s. 1
- In a situation where advocate system is challenged – crt might used 4th step of s. 1 – deleterious
effects stage.
- But could go wither way – national security is very serious
The right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate
who must decide on the facts and the law, the right to know the case put against one, and the right to
answer that case. While the IRPA procedures properly reflect the exigencies of the security context,
security concerns cannot be used, at the s. 7 stage of the analysis, to excuse procedures that do not
conform to fundamental justice. Here, the IRPA scheme includes a hearing and meets the requirement of
38
independence and impartiality, but the secrecy required by the scheme denies the person named in a
certificate the opportunity to know the case put against him or her, and hence to challenge the
government’s case. This, in turn, undermines the judge’s ability to come to a decision based on all the
relevant facts and law.
Fox-Decent – SCC found that under s. 7, it had been violated b/c impossible to respond and meet case, if
one doesn’t know the case
- SCC also added that s. 7 violated but perhaps justification if less infringement
- so if special advocate doesn’t bring any procedural relief – we may be back where we started w/
SCC reviewing special advocate system
Liability of the Crown and the intersection of Crown Liability and Judicial Review (Guest
Speaker)
-
-
-
-
-
There is no clear of when Crown should be liable for it’s admin mistakes. Pushing in all direction
o But there is a golden thread of when Crown should be liable – very closely related to
principles in admin law (although courts are reluctant to say this)
Why should taxpayers ever pay people for the in competency of the civil service?
Principle of legality – what does the statute say?
o When you step back from legality and think about how it fits w/ separation of powers.
o The more you get into substantive review – the court has to stay in its place (what is for
court to decide and what is for executive to decide). Answer is always what the law says
o If parliament has passed an explicit law – it is not reviewable except on admin grounds.
o Anything authorized by statute is not reviewable
What was parliament’s intent – was is outside of what they wanted, this is where the judiciary can
step in
But what if statute is silent – Baker analysis seems satisfying. The more imp the decision, the
more safeguards due
o But how do we characterize the importance of the decision so we can decide how much
procedural fairness is due
Crown is immune – unless parliament removes immunity
o Crown Liability...Act – s.3
o Erased the immunity – gov’t is now liable for the same things they would be if they were
a person
1376 CCQ – state (QC) is subject to liability – imports public law principles into interpretation of
damages
illegality creates a presumption of fault
Grenier
- prisoner who is put in solitary confinement. Looks like a harsh penalty
- sues the gov’t in federal court (s. 17 fed court act – concurrent jurisdiction)
- FC – he wins
- FCA – AG argues that you can’t award damages in a case that was never judicial reviewed
because until someone says that the decision is illegal, it is legal (can never be at fault)
- AG wins – can’t sue until you have declaration that says decision you are suing about is invalid
- Or could be seen as an accident of the structure of the Federal Court
-
but can sue in Superior court and attack the decision without judicial review
39
Montambeau
- QC Crt of Appeal – turns liability for admin actions on its head
- The real issue is judiciability
- The threshold questions is legality – court’s role is to see if law was correctly applied
o So why don’t we do the same kind of analysis that we do for Judicial Review
The Content of Procedural Fairness – Oral Hearings, Right to Counsel
Oral Hearing
When s. 7 interests are at stake and credibility is at stake, presumption that there is a right to a hearing
(Singh) – The only way you assess credibility is by representations made before some person in the
position to assess the credibility of the statement given by the person, subject to a decision.
Khan v. University of Ottawa [1997] ON CA
Facts:
- Student at U of O – Khan – write an evidence exam, thinking it was 2 hours in duration
- Wrote in 3 exam books 1 of 3, 2 of 3, 3 of 3 – later realized she had more time – labelled the book
“insert” and stuck it in the others
- When she goes to check her exam, she finds out that they never received the 4th booklet – appeals
her grade to Law Faculty Examinations Committee – makes written submissions
- Committee consults with prof. and admin office – only had 3 booklets
- Case turns on fact that the Examinations Committee did not believe she had written a 4th
booklet (credibility) – if it did exist, the failure to mark it would have been an error and she
would have been entitled to rewrite the exam.
- She failed the semester, and had she passed Evidence she would have passed the semester
- Senate Appeals Committee at Ottawa U also doesn’t believe her
o Say they’ve never lost a book before
o The books were labels 1 of 3, 2 of 3 etc – suggests there were only 3 booklets
o There wasn’t much written in 3rd booklet – more doubt that the 4th booklet existed
- *** at no point was Khan given an oral hearing or the right to present***
- Seeks judicial review – loses at trial, but takes case to court of appeal
Issue: Should there have been an oral hearing?
Held: Yes.
Reasoning:
This isn’t about whether or not she wrote in a 4th book. It is about whether or not she should have been
given an oral hearing.
-
all agree that threshold is met for fairness; but they disagreed on the content…
CA – court split. Majority finds she has a claim
Majority: The fundamental issue was an issue of her credibility. If they had believed her, they would
have had to accept there was a 4th booklet and failure to grade it would mean entitlement to rewrite her
exam
- Khan should get an oral hearing before the exam committee
- At the oral hearing, Khan would be able to respond to the factors that the exam committee said
40
are relevant to its consideration, since it is her credibility that is at stake
Dissent – not an issue of credibility but rather an issue of whether failure to assess Khan on basis of
booklet she claims exists constitutes an error or injustice sufficient to grant relief
- The prof even said that even if the book was found, more of the same wouldn’t have helped!
- not about credibility, just about whether there was adequate procedures
o Its not adversarial, no allegations of misconduct, etc.
o It was just about whether there would be any injustice in refusing her appeal
o Because the prof said more the of same wouldn’t have helped  it didn’t seem to be any
major injustice
- Taking factors into consideration, it is not clear that rewriting the exam should be the relief
provided b/c it is not clear that there has been an error or injustice
- She didn’t do well in her other courses –
- Not like she failed out of school entirely – she would just have to do another term
- no one is denying fairness – she has given written submissions to the committee
How is the issue characterized
- Dissent; do we have to grant an appeal to correct substantive error or injustice. Has she been
assessed in a way that constitutes an injustice
o Only need to figure out if there has been an error or injustice
o Also attacks majority view – real question is not whether someone should get an oral
hearing it’s whether a student has an opportunity to put her case before relevant
authorities, and she has done that. Her oral submission would be much he same as her
written submissions – what is to gain
- Majority – credibility. If we believe her, she gets to rewrite exam. Have to at least hear her to
assess her credibility.
Right to Counsel
- idea that people may have a certain right to be represented by lawyers
- No real CML rule to establish this
- Might have been a presumption of the right – Men’s Clothing (Southy J)
Re Men’s Clothing Manufacturers Association of Ontario and Toronto Joint Board, Amalgamated
Clothing and Textile Workers’ Union [1979]
Facts:
- Harry Arthurs is the Arbitrator.
- Industry that has been functioning with system of arbitration for a period of about 60 years
o During that period, the parties had always come to arbitration without legal counsel –
facts presented by parties themselves
o Arbitrator would schedule a hearing within a couple of days and the arbitrator would
render a decision a few days after that – whole thing took about a week
- This case was quite complex – managers asked if they could bring a lawyer to explain their
position
- Arthurs – no per say CML right to have a lawyer. These proceedings have worked in a speedy
and efficient way for 60 years
o If one party started to bring lawyer, the other party would feel they had to do so too.
Lawyers would gum up the works. Would take much longer.
o This would undo the system which had been working fairly well
o No general or absolute right, but in same cases where there are complex issues a lawyer
can be brought in to argue a specific legal issue – not to be involved in the entire case.
- Managers claimed their case was complicated (believed they might become insolvent if the case
was not decided in their favour) – Arthurs says in so far as there is a complex legal issue to be
41
-
address, a lawyer can be brought to address that issue
Managers not satisfied – wanted lawyer throughout whole proceeding. Sought judicial review.
Issue: Is there a right to counsel?
Held: There is no absolute right to counsel. But in this case, there is a right to counsel.
Reasoning:
On review, Southy J. overturned Arthurs decision
- The parties to the dispute, a company and a union, are artificial persons – will always have to be
represented by an agent (natural person). So the issue is not whether someone can represent the
parties, it is whether a labour arbitrator as jurisdiction and authority to limit who the parties can
select as an agent to represent them.
- Company is potentially facing bankruptcy, they can bring a lawyer if they want
A right could be inferred from
1) the collective agreement, which provided for arbitration
a. (but in this case there is no mention of lawyers, so it wouldn’t help);
2) the particular terms on which the parties go to arbitration
a. (as part of the agreement to arbitrate, they could agree to use lawyers – not the case here);
3) Natural justice:
a. the common law permits people to get legal counsel to act on their behalf.
b. This principle operates autonomously, unless statute, the CA or some agreement inter partes
excludes it.
c. it’s a general right to counsel, not an absolute right
A right is allowed here b/c:
- the people being brought forth are not real persons – they are moral persons and they need agents
- Preventing lawyers from being the agent blocks their entitlements to choosing who their agent
will be
- The right to choose one’s agent is a matter of natural justice
- The director of the company said they did not feel competent to bring forth the issues at stake
You have to have a more or less unfettered right to counsel, unless the collective agreement
says the contrary. Arthurs says you would have to have an explicit term for lawyers to come in,
while Southey’s view is that regardless of the fact that the collective agreement is silent and
regardless of the practice, there is somewhere out there a residual right to use a lawyer.
Point: Right to counsel is there by default unless there is a special reason for exclusion and that
cannot be the fact that there was a practice of not having lawyers.
Class discussion:
Fox-Decent – intuitively this may be a good argument – it seems like there should at least be a
presumption in favour of allowing persons to use lawyers should they so wish to use them
- If the system had been fine for 60 years. Does that create an presumption that if it ain’t broke,
don’t fix it.
- Maybe lawyers won’t understand the evolving relationship between the parties – the collective
agreement isn’t like an ordinary contract – it grows and changes over time. Also, the point of
arbitration is to allow the relationship to continue. It is important that there are mechanisms
available to resolve disputes that arrive in the course of the agreement in an efficient way to avoid
long-term animosity.
42
-
-
What about Arthurs argument that in the 1970s labour relations was specifically left out of the
Statutory powers of procedure act
Could there be a compromise where lawyers would allowed to be present but they would have to
respect the customary norms that have developed within the system
Fox-Decent – in practice, a compromise may not be possible. Arthurs worries that letting lawyers
in as a default rule is tricky – the speedy, efficient, accessible dispute resolution system might
begin to erode
What about the CML tradition – develops by people doing things a certain way over time. There
has been ongoing participation in the system – might give rise to an expectation that that is the
way it should continue to operate
New Brunswick (Minister of health and Community Services) v. G.(J.) [1999] SCC
Facts:
- A mother had been separated by order for a six month period from her children; they were to be
wards of the state. The mother resisted an application for a six-month renewal of the separation
order.
- The case is complex with the Minister leading about 15 affidavits
- Court sensitive to likelihood that the woman involved did not have the capacity to participate
meaningfully in the process
Issue: Is there a right to counsel? Does the state have responsibility to fund legal counsel for her?
Held: Yes. She has a right to a fair hearing under s. 7 and that includes right to counsel.
Reasoning:
No CML absolute right to legal counsel
- Since advent of Charter s. 10b allows people charged w/ crim offence right to counsel
- Until this case, that was the limit
Court first dealt with issue of whether or not this is a Charter case
- Yes under s. 7 – security of mother and children is in peril. The security of the person interest of
both children and parent was triggered by a forced separation – psychological stress that flows
from separation order. Children’s right is engaged because at law we presume it is in the best
interest of the child to remain with the parent. To separate children form their parents, have to
have an involved hearing to justify an infringement of this best interest
- Given this right was infringed, it was necessary to determine if the infringement was consistent
with principles of fundamental justice
- the right to a fair hearing was considered a factor in the right to fundamental justice
Does the content of a fair hearing require the state to provide legal counsel to the mother?
What so we need to provide a fair hearing?
- 3 reasons to think that in these circumstances, the mother would not receive a fair hearing
o 1. Complexity of proceedings
o 2. Seriousness of case and interest (touching on s. 7)
o 3. Capacity of individual – doesn’t have higher education. Court thought given the
inherently adversarial nature of the proceedings and her lack of familiarity with them, it
is difficult to imagine that she would be able to participate meaningfully
- She is due legal aid – to satisfy procedural requirement of fundamental justice, she must hav a
lawyer to represent her interests, even if that means state has to pay for it
S. 1 analysis – no violation of s. 7 has even been justified.
43
-
Analysis turns entirely on last part of Oakes test – deleterious effects. Given that cost to provide
legal service is only $100,000 – not enough to justify infringement
If the s. 7 interest was triggered, there is a right to counsel given 1) the complexity of the proceedings, 2) the
seriousness of the interests at stake, and 3) the capacity of the appellant or parties subject to the
proceedings.
Comments:
- Comments: decided around same time as Baker – involves separation of parents and children
o Why is this mother’s s. 7 right engaged but not Baker’s and why does this mother have
right to counsel but not Baker.
o Could argue that procedure is diff – in Baker it was written submissions; here it is a 3
days hearing.
o (Could it also be that Baker was a black immigrant from Jamaica who is seen to be
leeching off the system???)
o What is that it was a refugee case instead of Baker? – Procedure before IRP is adversarial
like the hearing in this case. Courts haven’t found that there is a right to state-funded
counsel.
o Sadly, seems like we treat people who are citizens differently than we treat non-citizens
- What about the capacity argument – peculiar. We don’t typically delimit the scope of
constitutional rights based on someone’s capacity
o Is there less of an obligation to provide legal counsel to someone who has more capacity
- Very interventionist judgment – who gets legal aid is a very economic, social policy questions
Fox-decent – protection the mother’s interest should be similar to protecting the interest of a criminal
accused
Content of Procedural Fairness – Duty to Give Reasons
Serious blurring of the process/substance distinction
- Courts review procedural decisions on standard of correctness – if the admin gets the procedure
right, the courts are more deferential in the substance questions
- L’H-D – reasons are to permit and facilitate an appeals procedure. Also, giving reasons helps
show that justice appears to have been done and is done.
- Helps to reduce risk of error
- Fox-Decent – Most imp rational – helps to ensure that the individual affected by decision-making
process has opportunity to participate in the process, and the individual’s participation is not a
charade.
o If there is a duty to give reasons, those views and concerns have to be given full and
adequate consideration
o Decision maker can’t just repeat that facts and then state their decision – have to show
how they reached the decision
Seems that duty does now exist be default if there is an important interest at stake
What does the duty consist in? Evolution:
Baker – duty seemed to be symbolic. L’H-D – only have to provide some indication of there sons for the
decision – reasons don’t even have to come from primary decision-maker. Doesn’t have to justify, just
provide an explanation
- and reasons can be accepted from someone who didn’t even make the decision
44
Suresh, Via Rail, Gray – duty seems more substantive
- Suresh – have to be responsive and deal with the issues brought up by the effected individual and
written by the decision maker.
- Court decided that where individual raises prima facie grounds to believe the person might be
subject to torture, Minister has to establish on balance of probabilities that they do not believe the
individual will be subject to torture. Gov’t has to show that 1) there is no serious risk of torture
and 2) the person is a danger to Canada
o Have to at least go through process of arguing these two conclusions
o Crt clearly stated it was not enough to have notes form someone who is not a primary
decision maker
o In the case they used a memorandum – crt said it was more like a prosecutors brief and
not reasons
o So what is left to review as a matter of substance is the evidence and interpretation of the
evidence that supports those conclusions
o Duty is not simply satisfied by decision-maker just explaining why they made the
decision. Certain conclusions must be supported.
o This sounds substantive – content being built into reasons
How do we square the interventionist hand-on message, where duty has certain determinative elements,
with hand-off deferential message where deportation order will be reviewed on deferential standard of
patent unreasonableness
- Critical distinction to draw is between what the Minster is required to prove (established as matter
of procedural fairness – duty to give reasons) and the grounds upon which the assertion is made
- There has to be, in the package of reasons, certain element. But whatever the evidence is to
support the element will be reviewed separately on a deferential standard
Via Rail Canada Inc v. National Transportation Agency [2001] FCA
Raises larger issue of how much is left for review of substance given how much is made of duty to give
reasons
Facts:
- An appeal from a decision of a national transportation agency that held that Via’s policy is unfair
to disabled persons (undue obstacle).
- The policy is that when a ticket is purchased for a disabled person tariff, an assistant can go with
them for free. But the assistant must help them on and off the train. They argued that this is the
job of the carrier  this is an undue obstacle on mobility.
- The agency investigated; found that it was an undue obstacle; invited VIA to provide reasons why
this provision was necessary & why they should not strike that part of the tariff out & require
VIA to help disabled person on and off the train – Via gave submissions based on economic and
efficiency considerations
- NTA – took submissions into consideration and then drafted brief reasons ordering Via to change
the provision – can’t require the attendant to help the disabled party – this places an undue
obstacle
o Reason they gave is that on evaluation of the submission, so long as some advanced
noticed is received that a disabled party intended to travel on a train it shouldn’t be that
difficult to accommodate the person and have a Via employee help them board –
wouldn’t really be too hard to accommodate disabled travellers
o Not fair for Via to require an attendant to board that person
- Orders Via to strike provision and make clear that Via rail will take responsibility for helping
passengers
- Via seeks judicial review
45
Issue: Did the NTA satisfy the duty to give reasons?
Held: No
Reasoning:
FCA – finds in Via’s favour entirely on basis on analysis conducted under duty to give reasons
- NTA failed to set out the reasons why it had made decision and in particular failed to indicate:
o 1. Definition of obstacle and why NTA felt that having attendants help passengers was an
obstacle
o 2. What it meant by undue – how is requiring someone to help board would constitute
undue obstacle.
o 3. Failed to engage in balancing test – reasons in favour of upholding NTA decision is to
maintain the dignity of disabled passengers. Reasons in favour denying that Via as an
obligation to help have to do with economic and admin issues. Recognition that practical
concerns can play a role
o When NTA gave decision to Via – the decision simply cited the reasons provided by Via
and then just said it wouldn’t be difficult to accommodate
- It is clear that Via is not expected to do everything. Part of the reason attendant is able to travel
for free is b/c Via isn’t expected to do everything to facilitate passenger’s travel
Comments:
Fox-Decent - Much more substantive judgment than Suresh – shouldn’t this kind of analysis really go on
under substance?
- court does not distinguish between the content of the duty to give reasons and review of the
substance of the decision
- b/c duty to give reasons is part of the procedural fairness, there is no use of pragmatic &
functional analysis to determine whether deference is owed
- so it can be a way of sneaking around this test & still dealing with the substantive content of the
decision
- Seems like what is under review is the substance of the reasons – NTA did give some reasons
although they didn’t go into detail (would this have been enough under Baker?)
- Perhaps the reasons could have been stated a little more clearly
- In substantive review – court is to look at reasons that were given and reasons that should have
been given
- This looks like it is being reviewed on standard of correctness – under that standard, where there
is an error of law, no deference is owed.
Gray v. Ontario (Disability Support Program) [2002] ON CA
Facts:
- Disabilities case – woman suffering from chronic pain
o Claims she can’t hold down a job – Dr supported testimony – seems like she fits in
parameters of act
- Social benefits tribunal finds that though she suffers from chronic pain they will not recognise
that she has a substantial impairment – disqualify her from receiving benefits
o Basically disbelieved her b/c the kind of chronic pain she suffered from (migraine) could
not be tested to confirm presence of absence of pain,
- Tribunal didn’t explain why they disbelieved her Dr’s testimony
Issue: Did the tribunal satisfy duty to give reasons?
46
Held: No
Reasoning:
- the court finds that the tribunal’s determination is not supported by reasons;
o in fact it is made despite significant evidence to the contrary
- the tribunal failed to address why they considered certain factors – therefore their decision does
not stand
- b/c tribunal didn’t explain why they didn’t believe Dr. Not enough just to cite what other party
said. You have to, in a fairly sophisticated way, engaged with reasons and views put forth by
affected party and explain why you are finding against them
Comments:
- Went through entire duty to give reasons but then realised could have done substantive analysis
too
- Comment – point of pragmatic an functional approach is to let experts play a certain role in
decision making
o There are in many cases good reasons for judges to defer to admin decision makers even
when they think that if the matter had been before them, they would have reached a diff
conclusion – many time a reasonable decision doesn’t have to be the correct or fair
decision
- Based on expertise and trust enjoyed from leg – courts can defer to admin
Part III: Substantive Review
Introduction
Jurisdiction
Note: it has been replaced by the pragmatic & functional approach, though it still exists in some areas
- Historically, review of substance had been conducted on basis of jurisdictional review
o If agency exceeded jurisdiction, the decision is unlawful and courts would intervene
o Leg understood to delegate only limited power
2 types of jurisdictional review:
- 1) Excess of jurisdiction (going to jurisdiction)
o The body is exercising powers outside those delegated to it
o Ex. A labour board giving divorces
o Ex. 2: the agency is declaring the limits of its own authority (Acc. to Crevier, this is the
role of the courts)
- 2) Loss of jurisdiction
o Error made while exercising power within jurisdiction causes the body to lose jurisdiction
o Unfair hearings, irrelevant questions/considerations, asking the wrong question, etc.
Based on premise of rule of law: when legislators create agencies, they only give them limited powers
- This allows courts to get through privative clauses
o I.e. “final and binding”
o Strongest type: No cert clauses  no remedy of certiori (quash an order) or mandamus
(force a court or admin to do something), etc.
47
Problems with Jurisdiction:
It was easy for courts to review the substance of decisions where they were supposed to give deference
- Through the idea of irrelevant considerations, they could claim the tribunal lost its jurisdiction by
making an error of law
o Ex. CUPE v. NB (below)
Where is jurisdiction still relevant?
- Any questions that go to jurisdiction are reviewed on a standard of correctness
o Ex. Constitutional questions – i.e. if the tribunal is considering matters outside their
jurisdiction s.91/92
o taking core powers away from superior courts
- Some agencies have mutually exclusive jurisdiction over a certain matter
o Ex. Securities commission & competition tribunal
Pragmatic & Functional Test
- replaced the idea of “review of jurisdiction”
- Evolved from a need for coherence to deal with the problems of the jurisdiction question (errors
of law that go to jurisdiction v. those that do not)
- Attempt to respect the intention of the legislator – whether tribunals should be reviewed or not
- Has led to pragmatic and functional approach – way to look at decision making context as a
whole to avoid formalistic distinction between jurisdictional and non-jurisdictional questions
- Now, jurisdictional review means interpretation on a standard of correctness
3 standards of Review:
Correctness
- The agency has to get the “right” answer
o i.e. the same answer as the court
- If there are many possible interpretations, and its interpretation is reasonable, it will be overturned
if its not the same as the courts
- Fundamentally an issue of OUTCOME
- Usually happens when issues of constitution or jurisdiction (ltd issues) are at stake
Reasonableness Simpliciter
- Looking at the reasons, evidence or grounds that underlie the decision
- Court asks whether the reasons presented are capable of sustaining or supporting the decision
made by the agency
o I.e. is there are possibility of finding justification for the answer
- Even if the court would have come to a different determination, if the reasons are ok, it should
defer
- A new invention, before there was only correctness/patent unreasonableness
Patent Unreasonableness
- The court will defer unless the decision on its face simply cannot be supported on the facts, or is
perverse or contrary to reason
- Generally – the court does not have to look deeply into the evidence/reasons to determine its
patently unreasonable
4 Contextual Factors to determine standard of Review (Pragmatic and Functional Approach):
1. Presence of Privative Clause/Statutory right to appeal
- If there is a privative clause, is it full or partial
o Partial is “final & binding”
o Full is “remedies” (no certiori, etc.)
48
o Neither fully insulates the tribunal – courts can always review (Crevier)
o But they do suggest greater deference  closer to patent unreasonableness
- If there is no privative clause – you look for a statutory right of appeal
o Mirror image of a privative clause – the stronger they are, the less deference that is due
o Assumes this is the legislature signaling that they expect review and have no problem
with it
2. Purpose of the Statute & the provision within it
- The tribunal weighs competing interests  more deference
- Tribunal/agency is quasi-judicial  less deference
o I.e. not really about the purpose, but really the nature of the power
- Is it a policy-making power (more gov’t) or dispute resolution (judicial power)?
3. Expertise
- Are they experts with respect to the issue before them
- Do they have greater expertise than the courts?
- More expertise  more deference
4. Nature of the problem
- Law  less deference
- Fact  more deference
- Mixed Fact & law  in between
o Not all questions of law automatically create a standard of correctness; must consider all
of the p&f factors
Evolution of Pragmatic and Functional Approach
CUPE (1979)
- One of the 4 most imp cases in judicial review. Where the courts begin to recognize the
legitimacy of admin state and the idea that there are substantive good reasons to defer to the
decisions and interpretations of law that are made by admin tribunals. Birth case of pragmatic and
functional approach
Bibeault (1988)
- first case where it is called pragmatic and functional approach
Southam
- prior to Southam there were only 2 standards of review: patent unreasonableness or correctness. If
trib has jurisdiction and there is a privative clause = patent unreasonableness. If trib didn’t have
jurisdiction = correctness. Introduces reasonableness simpliciter
Pushpanathan
- Points out that review on a standard of correctness sis still available. First major case in which the
3 standards from Southam are canvassed and the pragmatic and functional approach is laid out
with the 4 factors.
Baker
- Says that the pragmatic and functional approach is not only applied to question where trib is
interpreting particular statutory provision, but also applies to discretionary decision making.
Courts had typically taken a hands off approach to discretion. Collapses distinction between
interpretation of law and discretion
Ryan and Dr Q
49
-
-
the high water mark of the courts affirmation of the pragmatic and functional approach as
opposed to the jurisdictional approach. Re-rendering of particular aspects of pragmatic and
functional approach
In both cases, there is a statutory right of appeal. After the primary decision maker has made a
decision, within the statute there is a right to appeal to the courts
o Dr Q – to superior court
o Ryan – directly to Court of Appeal
Law Society of New Brunswick v. Ryan [2003] SCC
Facts:
- Michael Ryan was found lying to clients about the progress of their cases. Ryan was put to the
Discipline Committee of the Law Society of New Brunswick. In his defence he argued that he
was suffering from psychological and health problems which drove him to his actions. The
committee disbarred him.
- Ryan appealed to the New Brunswick Court of Appeal which ordered a new hearing with medical
evidence. In the second hearing, Ryan was disbarred again. He appealed again to the Court of
Appeal who set aside the committee's decision.
- The Supreme Court was asked to consider the standard of review that should be applied by the
courts to disciplinary bodies and consider whether Ryan's disbarment should be set aside.
Issue: 1) Are there more than 3 standards of review? 2) What is the appropriate standard in this case?
Held: No. reasonableness simpliciter
Reasoning:
The Court determined that decisions of professional disciplinary committees are reviewed on a standard
of reasonableness simpliciter.
- On application of the standard, the order of disbarment was found to be reasonable.
- A standard of reasonableness was based primarily on the expertise of the committee. It was
composed of lawyers who understood the interest and were fulfilling the mandate of protecting
the public.
- Iacobucci was critical of the Court of Appeal's consideration of the accuracy and correctness of
the committee's decisions. On a standard of reasonableness the reviewing court should not be reweighing the evidence or re-trying the case. The standard inquiry involves asking whether "after a
somewhat probing examination, can the reasons given, fwhen taken as a whole, support the
decision?"
1) There are only 3 standards of review
- While it is conceptualized as a spectrum, the standards are the only 3 “points” on the spectrum
2) Standard in this case
- Broad Right of Appeal within the statute  less deference
- Expertise - look at composition of disciplinary body and found that it could be said to have
greater expertise (in Dr Q, SCC said it has less expertise)
o The composition of the committee includes some lay members – purpose of statute is to
provide regulatory framework that will help guarantee integrity of profession and public
confidence of profession. Non-lawyers bring an appreciation of what kinds of acts
undermined public confidence in profession
o Field – sensitivity – more experience than court in assessing cases where lawyers have
engaged in misdeeds
o Greater experience in assessing extent to which remedy must be applied – what
50
-
-
magnitude of remedy is appropriate
o So expertise pushes in favour of some deference
Law Society Act (purpose)
o They balance both public interest & the rights of the individual - polycentric
o Committee must be sensitive to the effect the action will have on they guy’s career – it is
quasi-judicial also
o So the result is mixed for deference
Mixed fact & law
o This is mixed fact/law  general principles being implied to a particular case
Therefore, appropriate standard is reasonableness simpliciter
The court should not substitute its own ‘reasonable view’; it must uphold the lower decision as
long as there is some rational basis for it
the SCC overturns both lower courts, & restores the remedy of the disciplinary committee
Comments:
In Dr Q – court found that less deference is due – strange.
- Fox-Decent – So which case to we follow. Where are the reasons for the conclusions most
compelling. In Ryan, the reasons are more compelling b/c reasons are given whereas in Dr. Q, no
reasons are given by SCC. Court in Ryan substantiated its findings where they didn’t in Dr Q.
Expertise means expertise relative to the court but also relative to the particular issue.
Dr. Q v. College of Physicians and Surgeons of BC [2003] SCC
Facts:
- Dr. Q was brought before the Discipline Committee of the British Columbia College of
Physicians and Surgeons for having sexual relations with a patient. The patient had originally
sought help in 1994 for depression. By 1995 the two began sexual relations. Dr. Q denied any
misconduct.
- The Committee found that Dr. Q was guilty of infamous misconduct. The Committee based its
decision on the weight of the patient's testimony, ignoring Dr. Q's testimony.
- The Committee applied a standard of "clear and cogent evidence". Dr. Q applied for judicial
review of the decision arguing that the wrong standard was applied.
- Trial Judge – in disciplinary proceeding evidentiary standard is neither balance of probabilities of
beyond a reasonable doubt – it is between – standard of clear and cogent evidence
o Says Judge’s job is to reassess the evidence and see if it does pass the threshold of clear
and cogent evidence
- So judge almost retries the case – goes through all the evidence presented
o Says Dr was not being advised by a lawyer
o Then explains away the evidence that she presented
- Dismisses complaint – standard of clear and cogent evidence has not been met. Order suspending
Dr was quashed
- Appealed to Court of Appeal – they look at the trial judge’s decision and says that they have to
find that there is an overwhelming error with the way the judge assessed the evidence and decided
the matter – didn’t find an overwhelming error
Issue: What is the appropriate standard of review for the tribunal? How does a reviewing court use the
pragmatic & functional approach?
Held: Deference is owed to the findings of fact of the board. Reinstates their decision.
Reasoning:
51
-
McLachlin, writing for the Court, allowed the appeal and reinstated the order. She found that the
standard of "clear and cogent evidence" was the appropriate standard.
Based on Pragmatic and Functional approach, the Committee decisions were to be reviewed on a
standard of "reasonableness".
Under the reasonableness standard the reviewing judge's view of the evidence is besides the
point. Instead, the court should only ask whether there is some basis in evidence to support the
conclusion.
1) Court erred in failing to use the pragmatic & functional test
- A statutory right of appeal does not automatically = correctness
- The judge at first instance is supposed to apply pragmatic and functional approach to determine
what the appropriate standard of review of the agency’s decision, and then determines if the
decision lives up to one of the standards
Application of the test to this case:
- Expertise: The committee is no more expert than courts  less deference
- Right of appeal/No privative clause:  less deference
- Purpose of the legislation gives a mixed message. Here purpose is multifaceted. To provide a
self-regulating profession with means necessary to regulate so that profession can continue to
hold confidence of the public
o Polycentric role – competent physicians for the medical profession, must balance their
interest with the greater public interest  more deference
o The proceeding itself is judicial, not administrative  less deference
o So in both Ryan and Dr Q – third step is neutral
- Nature of the question:
o A question of FACT – it was about the credibility of the witness before the committee 
more deference
Therefore, the proper standard of review is reasonableness, not correctness
2) Court erred in its analysis of the issue
- the trial judge also attacked all of the inferences of the inquiry committee & found alternative
explanations are available
- this is the wrong inquiry – it is not an examination of alternative explanations, but rather an
inquiry of whether the evidence on the record could reasonably sustain the decision made by the
tribunal
3) Role of Court of Appeal
- CA is supposed to look to see if the court below applied the pragmatic and functional approach
and came to proper conclusion as to what the standard of review is
o If trial got it wrong, they are supposed to apply the pragmatic and functional approach to
the primary decision to decide what the standard of review should be and them apply that
standard
- Any reviewing court must get the standard of review right  b/c this is a fundamental question of
law
Use of Procedural Fairness to Conduct Substantive Review
As seen in Via Rail, courts sometimes circumvent the p&f test by requiring a duty to give adequate reasons
- Procedural fairness questions are reviewed on standard of correctness, no need to engage in the p&f
analysis, because courts consider themselves experts on natural justice.
- In Via, the Fed CA substituted its opinion for the lower body b/c it found the reasons given were not based
on the appropriate considerations
When reviewing, there are two standards applied to the reasons:
52
-
-
1) Do the reasons fulfill the duty to give reasons
o Correctness standard
o The content is not settled in law – can be a checklist or more detailed
2) What is the outcome
o Based on the pragmatic & functional test
o There is a review of the reasons and how they were used at this point as well
Pragmatic & Functional Approach: Patent Unreasonableness
Patent Unreasonableness
1) Immediacy of the defect
- i.e. is the defect obvious on the face of the decision
2) Magnitude of the defect
- is the interpretation of the enabling statute or error so patently unreasonable that a court
of law cannot allow it to stand
Reasonableness Simpliciter
- There is some rational basis for the decision
- Decision must withstand a somewhat probing analysis of the determination
- It does not have to reach the same answer that the court would have reached
CUPE v. New Brunswick Liquor Corp [1979] SCC
one of the “big four”
SCC come out and recognized that there is a substantive reason for courts to defer to determinations of
admin tribs, - recognizes legitimacy of admin state
- Carwright J in Roncarelli – admin agencies don’t apply legal principles or legal standard, just a
policy matter. No right. Question of privileges, and therefore
o These types of judges would conduct review on patent unreasonableness – but would not
typically look at any reasons given by admin – sole role is to look at statute to read it.
Does it to the extent possible so that it could be consistent with CML rights – freedom of
contract and respect for private property – had to decide if admin decision was ultra vires
o Within the admin tribunal’s proper scope of authority, legal standards do not operate
- Hand off approach in CUPE – rational is that legal standards do operate and exist within scope of
authority of admin tribs – example might be procedural fairness. But also admin tribunals, b/c
they are entrusted by leg to interpret their enabling statutes for the purposes of delivering specific
public policy program, they are to be viewed as having legitimate and prima facie authority to
interpret statute and their interpretations are to be preferred if there are any rational basis for them
- Have to avoid methodology that previously dominated courts
- Dickson J – courts should be alert not to brand as jurisdiction that which is dubiously so
Facts:
Strike of public employees of NB liquor commission. The Commission used management personnel to
replace striking employees
- The leg was clear in some respects but not in others about what can go during course of strike
- Clear that during course of strike striking employees are not allowed to picket outside their usual
place of employment (leg prohibits) – b/c bargaining unit of public sector employees are based on
occupational groups. So in any public building there may be several occupational groups.
Underlying motivation of picket line is to encourage others to stay out and not cross the line. In
53
public sector – may have within same building people working for different departments. Would
be threatened if picket lines were established.
- But, leg also says that although there is no picketing, management cannot replace workers with
management. Trade-off.
o Employer shall not replace striking employees or fill their position with any other
“employee”
- In the statute, “employees” was defined with some exclusions – management are excluded from
definition of employee
- So management was arguing that we have to take statute on its face – employee is a defined term.
Labour board found in favour of the union – look to purpose of statute. As with all labour statute, trying
to facilitate industrial peace and rectifying inequality of bargaining power. Looked at private sector
examples
- Given that this is the background – makes sense to think that there would be the quid pro quo
notwithstanding that employee is defined explicitly to exclude management
- Management sough judicial review – won at trail and on appeal
On appeal – good example of an application of methodology of judicial review that came before
pragmatic and functional test was developed
- First question, did the board have jurisdiction to decide the matter before it? Does the act prohibit
management personnel from replacing striking employees? Jurisdictional question – if board
doesn’t get this right, Board has committed jurisdictional error and decision can be quashed
- If they do get preliminary question right and act does prohibit management personnel from
replacing – move to factual question. Did management replace striking workers? Fair bit of
deference here, but can only get here after passing jurisdictional questions
- CA sided with management – employee is a defined term. Leg has excluded management for the
purposes of the act
- On its face, it seemed like management could replace striking employees with management
personnel
Issue: Is deference owed to the tribunal? Is its determination reasonable?
Held: Yes. Yes.
Reasoning:
SCC – Dickson adopted deferential approach
What is the major argument that Dickson advances for overturning CA and favour decision of labour
board? There was a privative clause
- Distinguished from way in which these clauses had been treated in the past – prior to CUPE, the
clauses had been viewed as giving rise to a contest of wills (leg saying stay out, courts saying no).
“Judiciary thumbing its nose at leg”
- Fox-Decent - It does seem to be the case that when there is a clear privative clause, and then
judges interfere anyway, courts must be saying that the leg made a mistake. They must not mean
that it is up to admin agency to determine its own jurisdiction. Imply that to the extent that the lag
can be read that judges should stay out, they are making a mistake, at least to the extend that leg
is misunderstanding the extent to which they can delegate power. Law making power is not
wholly omnipotent even if leg claims it is. When power is delegated to admin agencies, you can’t
leave the limits of that power to be determined solely by that authority
- So how is CUPE a change - Labour board had particular experience in dealing with these issues
(like Arthurs said)
o Court looks behind formal injunction in privative clause (stay out) to the substantive
rational that underlies it’
54
In labour context – it is not an ongoing series of disputes that admit readily to
adjudication – rather, it is an ongoing process of admin.
o Law is best understood by those who are closest to it – labour relations board has greater
expertise and experience interpreting the labour codes and have a greater sense of what
the dynamic are in the workplace setting
o This explains why leg has decided to put privative clause in leg – and those reasons
themselves give the court reason to defer
o Now in pragmatic and functional clause, separate section for expertise. Before CUPE,
tribunal expertise counted for nothing. Legal question for courts was reduced to
jurisdictional question
 This was problematic since many issues can be characterized as jurisdictional
and deference was almost never given
Only overturn decision, if it is patently unreasonable
On standard of patent unreasonableness, the board is entitled to make errors, can reach
determination based on interpretation of statute that reviewing court might not make in virtue of
the legitimacy with which board exercises delegated power as trustee of leg. So long as it is clear
the board is interpreting statute in manner that has some rational basis.
Final decision – board was right.
o
-
Baker
-
deference pre-CUPE and post-CUPE: deference used to be deference as submission. The courts
could defer by submitting to will of leg. Now, there is an attempt to turn deference into something
other than submission. Deference as respect for legitimacy of admin tribs and will of leg and,
most imp, of for the reasons given by tribs.
National Corngrowers v. Canada [1990] SCC
Facts:
Similar to CUPE – involves specialized trib dealing with statutory scheme that is not often before the
courts
- Special Imports Measures Act
- Came about when US was subsidizing corngrowers.
At this time, there were some imports of corn grain from US. Special Imports Measures Act specified that
Canadian gov’t could make a recommendation to impose a countervailing subsidy if a trade partner was
engaging in an unfair trade practice, but only if there was a finding of material injury
- B/c there was only a bit of corn coming into Canada, the purchasers said that there was no
material injury to corngrowers
- Corngrowers argued that given scale of US economy and amount of corn it produces, that market
essentially control the price of corn around the world. As subsidies came to corn producers in US,
that allowed them to lower corn prices, and producers in Canada had to respond by lower prices
too. This response to the market, led producers to say there was material injury – having to lower
prices to pre-empt what would happen if they didn’t lower prices
Issue: What is the appropriate standard of review?
Held: Patent unreasonableness
Reasoning:
Both Wilson and Gonthier believe appropriate standard is patent unreasonableness
- Privative Clause?
- Expertise: tribunal is made up of economic specialists
55
- Purpose: Policy oriented /poly centric
- Nature of the Question: mixed fact/law
Court is divided about what review on patent unreasonableness entails: how deeply can you scrutinize the
reasons?
Majority (Gonthier)
- For a court to engage in any kind of review, they must look at findings & reasons put into
evidence (in-depth analysis)
- when you have statute that has been drafted in part to implement international agreement, then the
agreement should play a contextual role in helping to determine the meaning of domestic leg. But
the international agreement should also be referred to to help see if there is a latent ambiguity.
- Also analyses material injury – found there was material injury
Minority (Wilson)
- follows approach laid out by Dickson in CUPE (NB)
- Patent unreasonable review involves: whether or not it is evident that the tribunal’s interpretation is
patently unreasonable?
- If it is not immediately evident, the inquiry ends  there is no need to look at the way in which the
tribunal interpreted aspects of international law, or its findings re: facts
- Its not up to the court to engage in the analysis of imports/exports
o I.e. if the tribunal is acting within its statutorily mandated jurisdiction, then there should not
be a probing review of how it reached the decision itself unless the defect is immediately
apparent.
Difference between the two approaches:
Gonthier – doesn’t make sense to determine if a decision is patently unreasonable, without looking at
evidentiary basis trib used to interpret. Statutory interpretation + international law + finding of fact.
Wilson – just look at statutory interpretation. Her main reason is deference, if courts get into looking at all
the other stuff, and they find an error, that will lead them to be more likely to review. Argument of
simplicity
So, can you in fact engage in an appropriate practice of domestic statutory interpretation without look at
things like international law?
Pragmatic & Functional Approach: Correctness
Canada (Attorney General) v. Mossop [1993] SCC
Reasonableness Simpliciter didn’t exist at this time
Facts:
- Mossop (a civil servant)took a day of work for the funeral of the father of his same-sex partner.
- He applied for bereavement leave which was available employees in marriages, civil unions or
common law relationships with a member of the opposite sex.
- Employer refused leave.
- He complains that this is prohibited discrimination under the s.3.1 Can Human Rights Act, based
on “Family Status”. The tribunal agreed; family status includes same-sex partners.
- Commission decided that Mossup did have a complaint – fell within one of the recognized
grounds
o Unlike s. 15, Human Rights leg doesn’t have the same catch-all provision
o Has to be explicitly anticipated in leg
56
-
Here, le did not include sexual orientation within enumerated grounds, but it did include family
status
Issue: What is the appropriate standard of review? Did the tribunal err in extending family status to gays?
Held: Correctness. Yes.
Reasoning:
Lamer (majority): Standard is correctness
Privative clause – No. There is a statutory right of appeal. In CUPE there was a privative clause – here
there wasn’t and there was even a statutory right of appeal to courts – leg has anticipated that courts might
play a role in this decision making context
Nature of the Question – Interpretation of family status is a question of law. This is an issue of statutory
interpretation. So it is inherently a question of law. A searching standard of review is in order
Expertise: the HR tribunal has no particular expertise – there is a difference between specialized areas of
law such as labour boards, and human rights law, which courts are equally competent
- the tribunal has no special expertise relative to the courts
o Dealing with a general question of law – can the term family status be interpreted in a
wide enough way to include people who are discriminated against as a result of their
sexual orientation
o Requires a particular interpretation of a particular statutory term
- How is this case different from something like CUPE where the decision was also about the
interpretation of a term (“employees”)?
- Fox- the judges are essentially saying that a labour tribunal like in CUPE has expertise. The
experience of that tribunal with those parties and with that leg gives them a certain expertise vis a
vis the court as to who should count as an employee
- Unlike labour tribunals, Human Rights tribunals are struck on an ad hoc basis – wouldn’t develop
its own jurisprudence over a period of time like labour boards
All of these consideration push toward standard of correctness
Purpose of Act: The HR Commission does have several policy functions – it investigates complaints, and
also makes general recommendations to the minister on HR issues
- BUT – in this context, the HR Commission is acting in a purely adjudicative manner; It is
investigating and adjudicating Mossop’s particular claim. Polycentric nature of policy work done by
Human Right Commission does not attach to the adjudicative work they do.
- The decision involves ‘basic social values’ – something very close then to a constitutional litigation;
therefore standard should be correctness
Statutory right of appeal + nature of question is statutory interpretation of general term + no expertise =
standard of correctness
- Using correctness the court decides that it is clear the leg thought about including sexual
orientation as a basis of discrimination within Human Rights Act, but didn’t.
- If leg failed to do it, it is not for courts to do it.
L’H-D (dissent) – what could be more within human rights trib’s jurisdiction than interpreting the scope
of enumerated grounds within that jurisdiction. Legislators often don’t right in a lot of things. But
obviously by not defining terms, that opens up possibility to people trusted by the leg to define them
57
-
Squarely falls within jurisdiction
Then the standard should be patent unreasonableness
It is also not simply a question of law – it is mixed law and fact
Comments:
Interesting problem this case presents
- we know leg decided not to include sexual orientation (came out of parliamentary debates and
committee meetings) – fundamentally what majority pinned their judgment on
- at same time however, it is equally clear that the legislation was passed with intent that trib would
be entrusted with defining terms of leg
o none of the enumerated terms are defined
- So mixed message from the legislature
o won’t explicitly say sexual orientation but will allow claims on family statutes and the
definition of that term is up to human rights tribunals
- Based on this – who is more convincing? L’H-D or majority?
- L’H-D looks at French version of leg - situation de famille
o Situation is not the same – doesn’t connote same kind of thing (married, divorced, etc).
Situation is more open textured and doesn’t necessarily connote limited range of options
o If family status were really to be limited to civil status, the term that would have been
used in French would have been état matrimonial
What are the consequences for finding with either correctness or patent unreasonableness
- even if L’H-D found that standard of review was correctness she would have still deferred to trib.
o On any standard of review she would have said the trib was right
- Majority judges – more difficult. If they followed CUPE, would have been within jurisdiction of
trib to interpret enumerated grounds of discrimination
o If CUPE is correct – majority judges have a more significant burden to discard
o On correctness you only have to show that there is some rational ground to show that the
decision of the court of correct. Then if the trib’s decision doesn’t match, it is wrong
o On patent unreasonableness – only have to find a rational basis for the interpretation of
the provision and if there is, you have to defer.
- Interesting do see differences in how pragmatic and functional approach applies but also how the
standard of review might have made a difference in the majority’s decision
- Another case of “tail wagging the dog”
- Might be the case that majority has certain view in mind – leg didn’t include sexual orientation,
so we’re not going to. But because there is a plausible basis to include it we have to find the
standard of review to be correctness to allow our desired result to work
Pushpanathan v. Canada [1993] SCC
- Bastarache – one way to think a out jurisdiction now is that if you apply pragmatic and functional
approach and the standard you come to is correctness – this is the equivalent of saying that it is a
jurisdictional matter
- Iconic reference for pragmatic and functional approach – because it is the first major case that
came after Southam where reasonableness simplicitor was developed and put together the
conditions that have to be taken into account when choosing a standard of review
Facts:
- Immigration case, and yet majority comes to conclusion that appropriate standard of review is
correctness
o Historically, courts have been very deferential to Crown and executive in immigration
matters.
58
-
-
-
-
o Courts are there just to police or safeguard the boarder of legality
Pushpanathan arrived in Canada seeking refugee status from his native country of Sri Lanka. The
claim was never settled as he eventually got permanent resident status.
After some time, Pushpanathan was arrested in Canada and convicted of conspiracy to traffic in a
narcotic. He was sent to prison and was eventually paroled. He tried to renew his refugee claim
but a conditional deportation order was issued. The Immigration and Refugee Board denied his
application as his criminal record violated art. 1F(c) of the Convention Relating to the Status of
Refugees.
Crown is seeking to exclude him as a convention refugee on grounds that he fell within narrow
range of excludable class of people
o In particular, Crown argued that s. 1(f) of Refugee Convention, says that people who
commit acts which are contrary to principles and purposes of UN are excluded from
seeking protection under the convention
Rational for exclusion is that refugee convention was established after WWII, drafters wanted to
avoid providing int’l legal regime through which perpetrators of war crime could flee the
jurisdiction where they committed those crimes and seek shelter
Pushpanathan appealed the decision of the Board. The major question concerned what standard of
review should be applied to the Board's decision.
Issue: Does this guy as a trafficker of hard drugs count as someone to be excluded under 1(f)?
Held: No. The exclusion in Refugee Convention ought to be read restrictively
Reasoning:
Bastarache (majority) – no. The exclusion in Refugee Convention ought to be read restrictively
- Human rights leg to be read in large and generous light – this means that exclusion provision
within the leg ought to be read restrictively to allow for wide margin of application
Proper standard of review is correctness
Statutory right of appeal/Privative Clause - Limited statutory right of appeal – might look like privative
clause. But limited statutory right of appeal means that anyone can seek leave to review decisions through
federal court. Anticipation that federal court might be involved
- For issue to get to fed court of appeal, fed court trial judge has to certify that it is a question of
general importance – has to be able to stand for some kind of precedent
o The statutorily right of appeal is significant although it is limited – less deference
o Less deference – you need right to appeal – meaning leg believed it would only be
exceptional that you would get to court on appeal
Expertise – How it works: 1) characterise the expertise of the decision-making body in particular; 2) look
at that expertise relative to expertise of court; 3) most imp, have to characterize that expertise relative to
particular issue under examination
- Here is a human rights issue involving interpretation of int’l lega instruments. So fundemntally
question of law. No reason to think Immigration has any special expertise relative to courts
- Less deference
Purpose – where the act is looking to fulfil a certain board policy functions and the decision itself engages
the policy-setting power (like CRTC in Inuit), those policy-setting and education roles suggests more
deference
- If the decision looks more adjudicative than policy – less deference
- Where particular individual who’s rights are at stake
- Here, an aspect of leg that has to do with its human rights dimension. The immigration board’s
authority to interpret this deserve no great deference – Less deference
Nature of question – question of law. Can ask independently of the facts.
- Here, don’t need the particular facts of the individual – only need general facts
59
-
It is a question of law – because it will establish a precedent that will be useful for future cases. If
it can establish a precedent for future cases even if they might have different facts, it is a question
of law. – Less deference
o Question of fact are like those in Dr. Q where it’s a disciplinary committee where
someone Is complaining of certain conduct – factual matter is at issue. Did that person
engage in infamous conduct. No complicated legal issues. Just application of law, which
we know, to the facts
o Mixed fact and law – facts are so particularized that it is unlikely that the legal finding
will become a precedent
o This distinction is well established in Southam by Iacobucci.
o The more the question is factually intensive – more deference is given. Less factually
intensive, less deference
Major, Cory (minority) – yes. War on drugs. Not crazy to think that someone involved in trafficking is
doing something contrary to principles of UN
- the minister doesn’t have to come to right decision, there just has to be a reasonable basis
o This could work – drugs are bad. It is not patently unreasonable to think that purposes of
UN now include effort to eradicate drug trafficking.
Comments:
- If standard of review had been patent unreasonableness or reasonableness simpliciter, it would
have been much more difficult for majority to come to decision that the decision was wrong
- If Bastarache had come to conclusion that patent reasonableness was the right decision, then he
couldn’t ask if the original decision was wrong, he could only ask if the original decision was
reasonable and it looks like there are reasons to think it was reasonable
- So using correctness helps judges get to a decision that they set out to achieve?
- Fox-Decent – arguable that on a a fair reading of pragmatic and functional approach could come
to conclusion that correct standard is patent unreasonableness
Trinity Western College v. BC College of Teachers [2001] SCC
Facts:
- Trinity Western is a religious teacher’s college. It condemns homosexual practices. It runs a 5year teacher’s program; the last year all students have to go to SFU. Trin is trying to get
permission to keep its students for all five years. The college of teachers, responsible for
accreditation of teacher’s colleges refuses their request; they were concerned about the attitudes
towards homosexuality and thought students should be exposed to a more diverse institution.
- BC College of teachers refused – at trinity teachers and students were required to sign code of
conduct, part of the code stated that people in same-sex relations were involved in sin. Concern
that Trinity encouraged discriminatory view of sexual relations. Teachers would be going into
public schools and disseminating this view.
- Trinity filed for Judicial Review
Issue: Does the college of teachers have jurisdiction to consider human rights issues? What is the
standard for reviewing this decision? Did they err?
Held: The college has jurisdiction to review HR. Standard = Correctness. They erred; decision is
overturned & certification is granted.
Reasoning:
60
Majority:
Jurisdiction – Pragmatic and functional approach is generally seen to displace the approach that came
before CUPE where courts would ask if the decision at stake was one that involved an error of
jurisdiction
- Here, even with pragmatic and function approach in place, courts will sometimes segment their
analysis into jurisdictional and non-jurisdictional elements
- Both majority and minority said there was a initial threshold question to be addressed. Did the
Teachers Act give the College of Teachers authority to engage in program accreditation in the
public interest and to consider this matter in light of its mandate to be concerned with public
interest in equality? As opposed to narrow reading of leg which said that the College of Teachers
should only be concerned with professional standards and competency of graduates coming out of
a particular program
- Didn’t apply pragmatic approach to this issue.
- Yes, the College of Teachers did have jurisdiction – public interest should be read to mean that
the public interest includes and interest that can take into account issues of equality and
discrimination
So then pragmatic and functional approach was applied: has to do with broad discretionary power that the
College of teaches has to set the terms of accreditation
Privative clause - none (majority and minority agree) – Less deference
- No real statutory right of appeal
Expertise – how is it related to issue at stake. College of teachers has no special expertise in interpreting
the scope of human rights & balancing conflicting rights – Less deference
- The college sought a legal opinion before they made a decision – they didn’t trust their own
expertise
Nature of the Question – legal – Less deference
- This is not just about 1 teacher – it is about the appropriate evaluation of an entire program
- Therefore its going to have a pretty important effect in society – a type of analysis that the college
is not prepared to engage in
Purpose – While it is a policy decision, they are not the only body entrusted with making policy decisions
on this matter.
- public interest
- polycentric – closer to Inuit than a Baker type decision. Affects many people
- policy setting role – has authority to make recommendations to minister. More policy than
adjudicative
- More deference
Substance of the decision:
- The college does have the ability to consider HR standards.
- The BCCT did not properly engage in a balancing between the freedom of religion & rights of
homosexuals
- Majority judges motivated by fact that the College of Teachers determination had been made on
basis of certain amount of speculation. No evidence that graduates of trinity had engaged in
discriminatory practices or contributed to an environment that was beset with stereotypes or
prejudice
- College of teaches took lack of evidence to be evidence that having the students take their 5th year
at SFU was working.
- Majority didn’t accept this
Dissent: L’H-D
Difficult to make the causal connection between the students completing their last year at trinity and them
61
being more homophobic, but can’t take the risk
- It is unfair to impose the risk that they will take their views into public schools on young children
- Difference b/w majority and minority – L’H-D says that in the area of expertise, the College has
the appropriate expertise to determine who can gain standing as a teacher
- Characterizes the expertise relative to the effect that a faith-based education might have down the
road – this has a factual component
- This is something that a self-governing profession and its regulatory body ought to be given a fair
bit of deference
Comments:
- Fox-decent – isn’t going with correctness going too far? Wouldn’t reasonableness simplicter be
better? Why did the majority have to conclude that the human rights dimension suggest that
appropriate standard is correctness?
- Would it change is the discrimination was race based – we think that some beliefs are so prima
facie unacceptable that we will not accept them
Pragmatic & Functional Approach: Reasonableness simpliciter
Southam v. Canada (Director of Research & Investigation) (1997)
Federal – Competition Tribunal
Jurisdictio
n
Facts
Southam is newspaper chain that owns a controlling interest in the daily papers in Vancouver. They
acquired other papers in the Vancouver area. The Competition Bureau orders divestment of 3 papers.
They Federal Court of Appeal to order Southam to divest itself of the other papers it had acquired. The
acquisition of the papers was against the Competition Act – Acc to the bureau, its share of the advertising
market is unfair competition. This depends on whether someone who would advertise in a community
newspaper to advertise in a large city paper.
Issues
What is the appropriate standard of review? What does a review based on reasonableness entail?
Holding
Reasoning
Iaccobucci
-
Standard of Review: Reasonableness
- No privative clause but there is a statutory right of appeal directly to the FED CA
o This suggests less deference
- But remaining factors suggested more deference:
- Expertise
o Matters are more economic than legal – they are about “functional interchangeability” –
if the change in the price of one thing will change the price of another thing
o The tribunal was composed of 8 economic laypersons, and a few judges – who could
give advice on the law – so it is an appropriate expert mix
- Purpose of Statute: Maintain & encourage competition to improve the economy
o Polycentric/policy purpose
o A lot of discretion to decide the remedy
- Nature of Question: Mixed fact and law
o Law = appropriate legal test
o Fact = what happened to the parties
o Mixed = application of the test to particular facts
62
We must be sensitive to the generality of the test & application to the circumstances
Mixed suggests more deference; even if the tribunal applies the law to the facts on a
way which the court may disagree with
o What is important is whether there is a rational basis for the application of the test to
those facts
What does reasonableness entail?
- The “decision can stand up to a somewhat probing examination”
- 2 elements:
o The evidentiary foundation of the decision
o The logical inferences to be made on the basis of this evidence to support the
determination or final outcome that the tribunal reaches
- Therefore the reasons given must be able to adequately support the determination, even if the
court would have reached a different determination…
- The role of the court is to make sure that the tribunal considers all of the relevant factors – its up
to them to decide how much weight to put on them
o
o
-
Ratio
Comments
Why not patent unreasonableness?
- It’s a formalistic reason based soley on the issue of the statutory right of appeal
- Court puts a lot of emphasis on the expertise
- there seems to be a bias towards economic expertise versus human rights expertise &
educational expertise
- expertise & nature of the problem are usually seen as the most important elements in p&f 
see Dickson’s comments from CUPE
o I.e. expertise as to the particular question at issue
- remember – p& f is meant to determine how much deference the legislature intended to actually
give to the administrative body
Discretion and the Constitution
When there is clearly a Charter issue at stake should we review the issue under the Charter or under the
pragmatic and functional approach in admin law
Orthodox approach – Slaight (Dickson). Where there are contending values at stake the best place to
discuss them is s. 1 of the Charter. We ought to apply Charter framework: (1) is there an infringement?;
(2) Is the infringement justified in free and democratic society?
- Adopted in Multani by Charron J.
Admin law approach – opposite end of spectrum – concurrency in Multani. When it’s an admin decision
at stake rather than a particular rule or statute then a Charter analysis is inappropriate. What we ought to
use is strictly the pragmatic and functional approach
- Argument that turns mainly in significant difference b/w how s.1 one reads in English and in
French
- In English – limit prescribed by law is understood as authorized by law
- In French – regle de droit – will not be a limit placed on a right except by a regle de droit –
understood to mean not a decision but a norm or statutory provision
- Given that limitations on rights under s. 1 are only supposed to be possible in accordance with
regle de droit it doesn’t make sense to think that particular decision themselves ought to be able
to place limits on rights.
- Should stick strictly to admin law
63
Mixed approach – review under admin law principles first. If answer at first step is that the authority
granted by leg to the decision maker is consistent with the decision offered, only then go on to apply
Charter
- Just because Charter has come into play doesn’t mean admin law no longer applies
- Lamer in Slaight
Slaight Communications v. Davidson [1989] SCC
Facts:
- Slaight is a radio station, Davidson worked there for a number of yeas and he generally either met
or exceeded sales targets. He was eventually fired. He claimed unjust dismissal
- Adjudicator found the dismissal was unjust and that the remedy would be not to reinstall
Davidson (too much bad blood) but to:
o 1. Positive order – radio would write letter of reference for Davidson saying in factual
terms what he sales quotas were and how well he performed. Letter was also to include
that the dismissal was subject to adjudication and the adjudicator found that the dismissal
was unfair
o 2. Negative order – gag order. Radio station was told that if future perspective employers
called the station about his performance, the station was supposed to provide the letter
and say nothing more. Idea motivating this is to prevent radio from giving the letter but
also talking badly about Davidson
- Goes to JR – the leg is not up for review it is a particular decisions
Issue: Does this requirement infringe upon s.2(a) freedom of expression?
Held: Yes. But saved under s. 1.
Reasoning:
Majority (Dickson) – he does away with review of this case under admin law grounds.
- Because it’s a particular decision that might lead us to think why not use Admin law. Just because
Charter is here, doesn’t mean admin law is gone. Why not as if adjudicator exercise power
outside jurisdiction, etc
Dickson reasons that where a charter right is specifically engaged, we should use a modified
form of review taken from Charter framework to deal with challenges to leg.
o Charter is supreme law of the land
o Under the Charter, w/i s. 1 we have better framework for dealing with competing values
(right on the one hand but good, clear, compelling leg purpose on the other)
- Aware of court’s history of hostile to union court – by using charter saw an op to reverse that
view
- When we look at the positive and negative orders, yes there is a violation of freedom of
expression (the court is unanimous on this)
- So then, is the infringement saved under s. 1
o Discusses at length the significance of the purpose of remedial labour legislation – to
provide equality of bargaining power between employees ad management
o Clear infringement but we have a very valuable leg objective with worthy social purpose
to provide some measure of equality in bargaining power
o No greater moment when the vulnerability is felt than when he is looking for a job – at
the threshold of decision of whether to hire someone or not, virtually no law applies
o So the adjudicator was trying to do what is consistent with purpose of labour leg
generally – provide a measure of equality of bargaining power b/w Davidson and future
employers by restricting freedom of expression of his ex-employer
64
Oakes test:
- Pressing & substantial objective: Prevent & remedy wrongful dismissal. It is also meant to
harmonize the power imbalance between employer & employee.
- Rational connection: connected to obligation not to speak – otherwise the employee could undermine
the effects of an objective letter. Positive order will provide equality.
- Minimal impairment: limited to Slaight. The letter is necessary because damages alone would never
suffice. A job goes to one’s person and well-being; employer should not be allowed to prevent one
from getting a new job
o doesn’t have to be the absolute least intrusive but have to minimally impair right – good
must outweigh the bad
- Deleterious v. Salutatory effects: when we look at vulnerability of employees, this kind of an
order doesn’t cause any real damage to radio station realistically
Lamer – dissenting in part
- Starts by saying Charter doesn’t get rid of admin decision
- Looks to admin law before charter analysis
- Negative order – this is like National bank – someone exercising power delegated from statute,
telling someone what they can or cannot say. From silence, people can reasonably infer that radio
station had an opinion of Davidson that they did not have. Possibility of attribution of a belief to
the station that they didn’t have
o Under admin law – was this kind of order within bounds of discretion conferred by leg?
o No, it is not consistent to think that this discretion is so unfettered, because we don’t
think parliament would allow an adjudicator to impose a gag order, the effect of which
might be to lead others to think the station held an opinion it did not hold.
o The negative order is patently unreasonable – decision was ultra vires to jurisdiction
o Positive order is ok – not patently unreasonable. It is factual, and the employer did not
challenge the facts. Ordering the employer to write the letter is not unreasonable
o There is no discussion of the consideration of competing factors in old-school admin law
– Dickson found this worrisome. This balancing can be done in Oakes test
- Only if it passes admin law test, then you apply the Charter. If it is reasonable, then apply
Charter.
Binnie would have found in favour of radio station – based on National Bank – can’t order people to say
things.
Multani v. Commission scolaire Marguerite-Bourgeoys SCC
Facts:
- Sikh boy waering kirpan to school. Fell out of its sheath on playground. Eventually principal and
parents and school board came to agreement that he would wear the dagger sewn into his clothes.
- School board’s council of commissioner vetoed deal
Issue:
Held:
Reasoning:
Majority - Uses orthodox view from Dickson in Slaight – if there is a Charter right, have to consider it.
Justifies using this approach referring to Slaight
- Charron denied that the case should be decided under the rules of admin law, which required
simple reasonableness. The majority believed this would limit the rights under the Charter
65
-
-
"The rights and freedoms guaranteed by the Canadian Charter establish a minimum constitutional
protection that must be taken into account by the legislature and by every person or body subject
to the Canadian Charter."
Minimal impairment – there are all kinds of things in schools that are dangerous and we don’t
think schools ought not to use them
o Given the conditions under which boy had agreed to wear the dagger, council’s decision
to prohibit kirpan was unlawful – infringes Charter right and not justified under s.1
Concurrence – Abella and Deschamps
While they agreed with Charron's decision to overturn the ban on the kirpan, they found that the proper
way to do this was through the rules of administrative law. Constitutional law should be used primarily
for statutes and regulations, and the tests used in constitutional law, such as the Oakes test, work best on
these laws.
- Charter shouldn’t be used at all when dealing with admin decision. Should just apply pragmatic
and functional approach, determine proper standard of review and then review the decision using
that standard
- Difference in language in s. 1 between French and English
o English – “prescribed by law”. Taken to mean authorized by leg. As long as there is some
basis in leg, the decision will be understood to be prescribed by law.
o French – “regle de droit” – this is explicitly a piece of leg or a regulation. Not a decision.
Important term in CVL that framers of Charter would have been aware of when it was
framed. In a bilingual jurisdiction. Both language versions have to be treated as
authoritative. How can we think of a decision made in relation as constituting a regle de
droit
 Decision doesn’t have same kind of legal basis and effect as positive statutory
law
Agency Jurisdiction
Idea that admin agencies, when they interpret enabling leg, should they be able to, how can and can they
apply the Charter directly to that leg
Old trilogy
Douglas College, Tetréault-Gadoury and Cuddy Chicks stand for two related propositions:
(1) First, an administrative tribunal which has the power to decide questions of law has the power to
decide the validity of particular laws under the Charter.
(2) Second, an administrative tribunal provided that it is discharging a function assigned to it by its
legislation may, in the course of doing so, consider and decide Charter issues.
(3) As a corollary, the cases affirm a third proposition: no express term is required for the tribunal to
apply the Charter. The power of the Commission to consider legal questions, while not expressly
stated, may be inferred from the Act.
- in some circumstances admin tribunals could interpret the Charter in light of their enabling leg
- consequence: if a trib found particular provision of their leg infringed Charter and could not be
saved, the trib was supposed to refuse to give it effect. Leg is not struck like in a court reviewing
leg
- left unanswered questions around methodology that they directed admin tribunal to adopt to see if
tribunals could apply the Charter to their leg
- Contentious – mainly for the reasons that are articulated by Lamer in Cooper
o The charter is not some holy grail that only the judiciary can touch – charter belongs to
people (dissent in Cooper)
66
o
Trilogy was not clear about basis on which tibs could apply Charter
 Could apply charter to constitutive statutes only if they were granted authority
from leg to consider general questions of law
 But what is a general question of law
Cooper v. Canada (Human Rights Commission), [1996] SCC
Facts:
- The appellants, who were being retired as airline pilots at age 60 pursuant to their collective
agreement, alleged age discrimination, given that most employees in Canada are required to retire
only at age 65.
- The employer submitted that no discrimination occurred in that the employment policy was a
bona fide occupational requirement.
Issue: At issue was whether the Canadian Human Rights Commission or a tribunal appointed by it to
investigate a complaint has power to determine the constitutionality of a provision of their enabling
statute. In particular, could the Commission ignore s. 15(c) of the Act?
Held: No
Reasoning:
- The Canadian Human Rights Commission has no jurisdiction under the Act to subject the Act's
provisions to constitutional scrutiny. The Commission is limited in its jurisdiction by the dictates
of the Act. Similarly, a tribunal appointed at the request of the Commission is also without
jurisdiction to determine the constitutional validity of a limiting provision of the Act.
- Commission plays a initial screening role to see if there is a case, if there is the trib is struck and
they do investigation and hold hearing
- Difficulty – court had to decide if Commission had been given authority to consider questions of
law
Majority – no. As a screening body they do not have authority to consider questions of law
- So it didn’t have authority to apply Charter to a particular piece of leg
- Because Commission could not apply Charter at first instance, when it later went on to strike
tribunal, the issue doesn’t get to trib.
- So alleged case of ageism is never subject to Charter scrutiny
There is no provision in the Act that explicitly gives the Commission power to determine questions of law
and nothing in the scheme of the Act implies that the Commission has this power. Looking at the Act as a
whole, the role of the Commission is to deal with the intake of complaints and to screen them for proper
disposition. The Commission is not an adjudicative body; that is the role of a tribunal appointed under the
Act. The Commission's striking down s. 15(c) of the Act (which is what a referral to a tribunal would
amount to) would be an assumption by the Commission of an adjudicative role for which it has no
mandate. Administrative bodies and tribunals are creatures of statute; the will of the legislature as it
appears in that statute must be respected. The role of the Commission as an administrative and screening
body, with no appreciable adjudicative role, is a clear indication that Parliament did not intend the
Commission to have the power to consider questions of law.
Dissent – McLachlin and L’H-D – if admin trib can’t review on Charter grounds, then party will have to
start separate parallel action. Costly,
- Much criticism of this case
Nova Scotia (WCB) v. Martin, [2003] SCC
Facts:
67
-
Martin suffered from chronic pain caused by work injuries. He attempted to claim compensation
from the injury but the Worker's Compensation Board denied any benefits.
He challenged the Worker's Compensation Act as a violation of equality rights under section
15(1) of the Charter for denying benefits to those with chronic pain.
The Appeals Tribunal held that the Charter was violated in Martin's case.
The government appealed the decision and the Nova Scotia Court of Appeal held that the tribunal
did not have the authority to apply the Charter.
o To arrive at this conclusion the court had followed the Cooper case. In that decision the
Supreme Court was divided on when the Charter could be used. McLachlin argued that
the Charter belonged "to the people" and so must be granted liberally. Lamer had argued
otherwise, stating that only courts of proper authority could use it. The compromise was
that it could only be used where there was clear legislative intent. On the facts here there
was no clear legislative intent and so the appeal court found the authority.
Issue:
Held:
Reasoning:
- SCC held that the tribunal had the authority to apply the Charter and found that the Act did
violate it. Consequently, Martin was given the benefits.
- Justice Gonthier, writing for a unanimous Court, considered the question of whether the Charter
could be applied by the tribunal. Gonthier stated that if the text of the legislation gives the
tribunal authority to apply the law then it can also apply the Charter.
- In the case where there is no express authority to apply law then the court can look for implied
authority by considering the statute as a whole. Factors to be considered include the mandate of
the tribunal, whether the body is adjudicative in nature, and whether it possesses any other
characteristics of the administrative system.
- If the claimant successfully argues that the tribunal has authority to use the Charter, the party
opposing this can rebut the presumption by either showing that there is explicit withdrawal of the
authority by the legislature, or by showing that the statutory scheme points to an intention to
exclude the authority.
1) Question of law: implicit/explicit
- Is there an explicit grant of jurisdiction to consider in the statute?
o S. 185 – Workers’ Comp Board has authority to consider all questions of fact and law
o But what about Appeals Board
o All determines of board are subject to appeal
o Explicit invitation to consider question of law – infer from leg that Appeals Board has
same jurisdiction
 Fox-Decent – this isn’t really explicit at all
o If there is an explicit or implicit invitation to consider question of law
- But that is only a presumption
2) Rebuttal of presumption: explicit/implicit
- Second part of judgment – the presumption that a trib can apply the Charter can be rebutted by
leg
o If you find in act an explicit withdrawal of the authority, the presumption is rebutted
 That is determinative because the sole basis of agency jurisdiction to consider the
Charter reside in powers delegated from leg to trib
- Could also look at statutory scheme in general for implicit rebuttal
68
Acts passed in BC and AB – most admin tribunals are prohibited from considering Charter
- leg passed explicitly with aim of responding to this jurisprudence
What about idea that Charter belongs to people and people should have access to it (dissent in Cooper)?
Martin was meant to vindicate the dissent in Cooper – does the leg now passed that restricts access to
Charter go to far against this?
- sense from policy makers that they don’t want the admin tribunals to get clogged up with
constitutional challenges – need a lawyer, takes more time.
- Waste of time, because even if they succeed at trib, judicial review can still be sought
Tough call between the two
If legislature take up the invitation of Gonthier and explicitly exclude tribs from considering Charter,
would there be any way to think that the admin tribunal may have, nonetheless, a duty of the authority to
apply Charter anyway. Or is legislative will completely determinative
- What about Constitutional supremacy – if Leg applies law that is unconstitutional aren’t they just
breaking the law?
- Although admin principles still exist and are still relevant, the constitution is still supreme
- The fact that admin trib gets power from statute, does not mean it can exercise those powers
however they want – there are limits
One of those limits is the constitution
69